
    Ramsay v. De Remer.
    
      (Supreme Court, General Term, Third Department.
    
    September 14, 1892.)
    1. Trusts—Validity.
    A devise “in trust for my granddaughter, N., to be used especially for her benefit, ” is within IRev. St. p. 718, § 49, declaring that lands shall be devised “directly to the person in whom the rigvt to the possession and profits shall be intended to be invested, ” and, if devised to one in trust for" another, “no estate or interest, legal or equitable, shall vest in the trustee.”
    3. Same—Right of Beneficiary under Void Trust.
    The trust being void, the legal estate vested in the granddaughter as beneficiary, under 1 Rev. St. p. 737, § 47, providing that a person who by any grant or devise shall be entitled to the actual possession of lands," and the rents and profits thereof, shall be deemed to have a legal estate therein of the same quality and duration, and subject to the same conditions, as the beneficial interests.
    3. Wills—Construction—Limitation to Issue.
    Land was devised to testator’s granddaughter, and, in case “ she. should die without issue, then all such property and interests are to be equally divided among my living children or their heirs. ” Held, that the devise was to the granddaughter and her issue, if she should have any, and the granddaughter took the fee in the land, subject only to being defeated by her dying without issue.
    4. Same-Vested Remainder.
    The remainder in favor of testator’s children was a vested remainder, and could be conveyed, it being a future expectant estate.
    6. Vendor and Purchaser—Title of Vendor.
    All those in whom the remainder would vest if the granddaughter should die without issue joined in giving her a deed of their expectant interests. Held, that this conveyance completed plaintiff’s title, making it one which she could convey by deed.
    Case submitted on agreed statement.
    Submission of a controversy on an agreed statement between Nellie Ramsay and John A. De Remer, under Cbde Civil Proc. § 1279. The defendant agreed by instrument in writing to purchase from plaintiff a certain lot of land in the city of Schenectady, plaintiff covenanting to give a good and sufficient conveyance. Plaintiff offered to defendant a deed, duly executed by herself and her two trustees, which defendant declined to receive, claiming the deed did not convey a good title. Plaintiff claimed title under the will of her grandfather, and quitclaim deed from all the testator’s children, and wives of his married sons.
    Argued before Mayham, P. J., and Putnam and Herrick, JJ.
    S. W. Jackson, for plaintiff. De Remer & Angle, (Edwin C. Angle, of counsel,) for defendant.
   Herrick, J.

The trust intended to be created for the benefit of the plaintiff, Nellie Ramsay, was void, and the trustees took no title thereunder. “Every disposition of lands, whether by deed or devise hereafter made, shall be directly to the person in whom the right to the possession and profits shall be intended to be invested, and not to any other, to the use of, or in trust for, such person; and, if made to one or more'persons, to the use of, or in trust for, another, no estate or interest, legal or equitable, shall vest in the trustee.” 1 Rev. St. p. 728, § 49; Birdseye, St. p. 3177, § 5. Here the words of the devise are “in trust for my granddaughter, Nellie Ramsay, to be used especially for her benefit.” It seems to me to come clearly within the meaning and intent of the statute. Rawson v. Lampman, 5 N. Y. 456; Fisher v. Hall, 41 N. Y. 416; Bank v. Holden, 105 N. Y. 415, 11 N. E. Rep. 950. The trust being void, the estate attempted to be created went to the beneficiary. “Every person who, by virtue of any grant, assignment, or devise, now is, or. hereafter shall be, entitled to the actual' possession of lands, and the receipts of the rents and profits thereof, in law or in equity, shall be deemed to have a legal estate therein of the same quality and duration, and subject to the same conditions, as his beneficial interest.” 1 Rev. St. p. 727, § 47; Birdseye St. p. 3176, § 3, and cases above cited. Upon the death of the plaintiff,'the estate would go to her issue, if she had any. While it is not expressly so stated in the will, the plain implication is that the testator intended the property in question should be held and enjoyed by the plaintiff and her issue. The provision in the will, in case “she [plaintiff] should die without issue, then all such property and interests are to be equally divided among my living children, or their heirs,’’seems to me conclusive that he intended that, in case the plaintiff had issue, such issue should take such property and interests; and, where the intent'can be clearly collected from the writing, it is the duty of the court to give effect to that intent, provided no rule of law is thereby violated; and devises by implication will be upheld where no gift of the property is made in formal language. Masterson v. Townshend, 123 N. Y. 458, 25 N. E. Rep. 928; Whitney v. Whitney, (Sup.) 18 N. Y. Supp. 3, and cases cited. The trust being void, and the estate going to the plaintiff and her children, if she had any, she thus had, in effect, the fee, subject only to being defeated by her dying without issue. The remainder provided for upon the death of the plaintiff without issue was a vested remainder, there being persons in being who would be entitled to the immediate possession of the estate upon her death without issue, (1 Rev. St. p. 723, § 13; Birdseye St. p. 2526, § 80;) and that remainder could be conveyed by such person, it being a future expectant estate, (1 Rev. St. p. 725, § 35; Birdseye St. p. 2529, § 102; Dodge v. Stevens, 105 N. Y. 585, 12 N. E. Rep. 759.)

It appears from the submitted case that all the persons who would have been entitled to the immediate possession of the property in question had the plaintiff died at that time without issue joined in giving a deed of such property to the plaintiff. She thus became the owner of the expectant interests theretofore vested in them, and the complete title to the property centered in her. There was no consequent interest outstanding. She possessed an estate that upon her death would go to her issue, or, if she had none, to her other heirs. This, it seems to me, gives her a perfect title to the property; one that she could convey by deed. For these reasons, I think that, under the -terms of the submitted case, the deed tendered by the plaintiff to the defendant would convey to him title to the .premises therein described in fee simple, free and clear of all liens and incumbrances, and that, in accordance with the conditions of the submission, the plaintiff is entitled to judgment against the defendant for the sum of $75, with interest from April 1,1892, with the costs of this action, for which let judgment be entered.

Mayham, P. J., concurs. Putnam, J., concurs in result.  