
    James Roosevelt Roosevelt and Others, Individually and as Trustees under the Will of William Astor, Deceased, for the Benefit of Mary Van Alen and Remaindermen, Respondents, v. Mary Van Alen and Others, Respondents; Mary P. Kissam and Others, as Executors, etc., of Philip Kissam, Deceased, and Mary A. Cruikshank and Others, as Executors, etc., of William Cruikshank, Deceased, Appellants.
    
      Trustees’ commissions — when the title to real estate directed to be set aside and held in trust during a minority vests in. the beneficiary — effect of a conveyance of the. property by the trustees to themselves as such.
    
    A testator by his will provided as follows: “I give to my executors or trustees a share of my property from improved real estate, to he selected and valued by them at three hundred thousand dollars, the same to he set apart from my individual estate not specifically disposed of in this will, to have and to hold the same during the minority of Mary Van Alen, daughter of my deceased daughter, Emily Van Alen, in trust, to keep the same invested, to receive the rents, issues and income thereof, and, after defraying all taxes and other lawful charges upon the same, to apply the net income, or so much thereof as they shall think is necessary, to the education and maintenance of the said Mary until she shall arrive at the age of twenty-one years, and to accumulate the surplus of said rents, issues and income, and to pay over the same, together with the principal fund, to the said Mary when she shall arrive at the age of twenty-one.” In a codicil to the will, by which the amount was increased to 8166,667, the testator spoke of this real estate as a trust fund.
    
      Held, that, reading both of these provisions together, it was clearly the intention of the testator that this share should be separated from the rest of his estate, and, when so separated, should vest absolutely in his granddaughter, a trust-being- created whereby the rents could be received for her benefit until, under the provisions of the will, she should become entitled to the possession of the estate;
    That the trustees were not entitled to commissions upon the fee value of this real estate;
    That the fact that the trustees executed to themselves as trustees of the trust created in and by said will for the benefit of the said Mary Yan Alen and remaindermen, a conveyance of the real estate in question, did not vest in them any greater estate in the land than that directed by the clause of the will, and constituted nothing more than the exercise of the power conferred upon them of selecting- the real estate, the title to which was to be vested in the granddaughter. ,
    Appeal by the defendants, Mary P. Kissam and others, as‘executors, etc., of Philip Iiissam, deceased, and others, from so much of a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 17 th day of January, 1898, upon the report of a referee, as confirms said report and denies the appellants’ testators commissions, upon certain real estate held by the trustees under the will of William Astor, deceased, for the benefit of Mary Van Alen, and directs that the plaintiffs convey to said Mary Van Alen the said real estate so held by them in trust for her.
    
      Franhlin B. Lord, for the appellants.
    
      George L. Rives, for the respondents.
   Ingraham, J. :

The only question presented on this appeal is as to the right of the trustees under the will of William Astor, deceased, to commissions upon the real estate, which, under the will, was directed to he held in trust for the benefit of Mary Van Alen until she arrived at the age of tw'enty-one years, when such real estate was to vest in her. The appeal is heard upon the report of the referee. The referee reports that by the 4th article of the will it is provided as follows: I give to my executors or trustees a share of my property from improved real estate to be selected aud valued by them at.three hundred thousand dollars, the same to be set apart from my individual estate not specifically disposed of in this will, to have and to hold the same during the minority of Mary Van Alen, daughter of my deceased daughter, Emily Van Alen, in trust, to keep the same invested, to receive the rents, issues and income thereof, and after defraying all taxes and other lawful charges upon the same to apply the net income, or so much thereof as they shall think is necessary, to the education and maintenance of the said Mary until she shall arrive at the age of twenty-one years, and to accumulate the surplus of said rents, issues and income, and to pay over the same, together with the principal fund, to the said Mary when she shall arrive at the age of twenty-one,” with certain limitations over to take effect in case the said defendant Mary Van Alen should die under the age of twenty-one years. By article 2 of' the 5th codicil to the said will this property to be set apart for the benefit of Mary Van Alen was increased from $300,000 to $406,667. In pursuance of this authority contained in the will the executors set apart certain specific real estate out of the testator’s real property for the benefit of the defendant Mary Van Alen. The referee reported that afterwards, and in order more effectually to vest the title to the said lots of land and premises so selected and set apart to the said trustees under said will for the benefit of the said defendant Mary Van Alen and remaindermen, as aforesaid, the said executors, in pursuance of the directions of the said will, and by virtue of the power and authority to them thereby given, granted and conveyed by the deed, dated May 24, 1893, unto the said executors, as trustees of the trust created in and by said will for the benefit of the said Mary Van Alen and remaindermen, the said pieces of land described, which deed was duly executed and recorded. The referee further reported that the said Mary Van Alen had arrived at the age of twenty-one years, and that the said lot of land so conveyed to the executors in trust for her should be conveyed by the said trustees of said trust by a deed in proper form unto the said Mary Van Alen; and in pursuance of this report a judgment was entered directing such transfer. The referee held that the trustees were not entitled to commissions as trustees upon the value of the real estate thus held for the benefit of Mary Van Alen.

The estate of the executors or trustees in this land thus devised to them for the benefit of Mary Van Alen was commensurate with the trust, bounded as to its duration by the terms of the trust. (Phœnix v. Livingston, 101 N. Y. 451.) The trustees were directed to set apart land to be valued by them at §300,000. They were to have and to hold the same during the minority of Mary Van Alen, but upon her arriving at the age of twenty-one years the land, under the will, was to go to Mary Van Alen. Upon the executors selecting the land which was to be set apart from the individual estate of the testator, the land so set apart then vested in the executors as trustees during the minority of Mary Van Alen, and, upon her arriving at the age of twenty-one years, vested in her. The executors had no power given to them by this clause of the will to sell this land and turn it into money and invest the proceeds. After the particular real estate had been selected by the executors it still remained real estate and the remainder vested in Mary Van Alen. The possession or enjoyment was merely postponed until she arrived at the age of twenty-one years. The trustees held this land during the continuance of the trust as real estate, and their duties in regard to it consisted in receiving the rents, issues and profits thereof, and accumulating the surplus income until the devisee should arrive at the age of twenty-one years. Its character never changed from that of. real estate to personal property. The provision as to the selection of the land by the executors which fixed the value of the property to be selected at §300,000, was merely a method adopted by the testator to separate the particular real estate that was to be selected and set apart for the use of the beneficiary. There was no equitable conversion of the property, because there was no direction to the trustees to sell. In fact, this clause vested in them no power to sell. The conveyance by the executors to the trustees created no more extensive estate in the property in the trustees than was given to them by the terms of the will itself, and this conveyance by the executors to the trustees was merely an effective way of selecting the property which was to be set apart for the benefit of Mary Van Alen. The provisions of article 2 of the 5th codicil did not change this construction to be given to the will. It is true that the testator there speaks of this real estate as a trust fund of $300,000, but he was there simply describing the provision that he had made for the separation of real estate from the bulk of his estate of that value for the benefit of Mary Van Alen. He therein directed that real estate should be set apart for her to the value of $466,687, instead of $300,000, as directed by the 4th clause of the will; but he also directed that all the provisions, trusts and powers of the said 4th article of the will which apply to each of said trust funds or estate therein named should apply to each of the trust funds respectively as to increase, being a distinct recognition of the fact that this was an estate which had been devised by the 4th article of the will, and not a fund of money created thereby. Reading both these provisions together, the intention of the testator is clear. He made this provision for his granddaughter, providing a method by which a certain portion of real estate could be set apart for her which should vest in her when she arrived at the age of twenty-one years, and that pending that time his executors and trustees should receive the rents, income and profits of such real estate, applying so much as was necessary to the education and maintenance of his granddaughter during that time; and that the fee of the property, with the accumulations of rents, should go to her upon her arrival at the age of twenty-one years. The fact that in the will and the codicils this real estate thus to be set apart for these specific devisees is spoken of as a fund or an estate would not change the character of the property which was to be selected, and when separated to vest in his granddaughter. It seems to me, therefore, that the fair construction to he given to this will is that an undivided share of the testator’s real estate was given to his granddaughter, a method being provided by which an actual partition should be made so that this share could be separated from the rest of his estate; and that when so separated it should vest absolutely in his granddaughter, a trust being created whereby the rents could he received for her benefit until, under the provisions of the will, she would become entitled to the possession of the estate. Applying this construction of the will, it is quite clear that the case of Phœnix v. Livingston (supra) applied, and that the trustees were not entitled to the commissions upon the fee value of the estate. In that case the will under consideration gave an estate to the trustee, running for the lives of the beneficiaries, with remainder over; and the court, held that the trustees were not entitled to commissions upon the value of the estate, and that the fact that they had a power of sale would not affect their right to commissions upon that remaining unsold, the court there saying: “ They were authorized to sell and to rent the real estate. Upon all sums of money thus realized and passing through their hands they were entitled to commissions ; but the unsold lands, at the close of the trust, passed to the possession of the remaindermen, not through any title derived from the trustees, but by force of the original devise. The trustees transferred no land, but simply refrained from exercising their power of converting it into money. And so they not only never paid it out even' constructively by any grant or conveyance, but never even received the absolute fee which all the time was a vested interest in remainder. Their estate was simply commensurate with their trust, bounded as to the duration by the terms of the trust, and as to the unsold lands never equalling, in value that of the fee.” This, we think, is conclusive upon the question presented here. The .fact, that the trustees adopted the form of a conveyance to themselves as trustees upon the trust mentioned in the will, as before stated, vested in them no greater estate in the land than that directed by the clause of the will in question; and their executing the formal conveyance to the devisee upon her arrival at the age of twenty-one years is nothing more than the exercise of the power conferred upon them of selecting the estate which was to be vested in the granddaughter, and transferring to her the legal title thereto.

I think the judgment appealed from was clearly right and should be affirmed, with costs.

Barrett, Patterson and McLaughlin, JJ., concurred.

Judgment affirmed, with costs.  