
    Nellie Ramsay, Pl’ff, v. John A. De Remer, Def’t.
    
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed September 14, 1892.)
    
    Will—Trust.
    By a codicil to his will, one R. revoked the provisions of his will in favor of plaintiff's father, and "bequeathed the same to trustees m trust for his “ dear little granddaughter,'' the plaintiff, “to he used especially for her interests, 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.” The other children of testator executed quitclaim deeds to plaintiff, who contracted to sell a portion of the property to defendant and tendered a deed executed by berself aud the trustees. Held, that the trust was void under 1 R. S., 728, § 49, and the trustees took no title thereunder; that the fee passed to plaintiff subject only to being defeated by her dying without issue; that all the persons who would have been entitled to immediate possession of the property, had plaintiff then died without issue, having joined in giving deed of such property to her, she became the owner of the expectant estates and vested with the complete title and one which she could convey by deed, and that the title offered was sufficient and that defendant should be required to complete the purchase.
    Submission of controversy without action.
    The defendant agreed by instrument in writing to purchase /rom plaintiff a certain lot of land in the city of Schenectady, plaintiff covenanting to give a good and sufficient deed of conveyance. In accordance with this agreement, plaintiff presented to defendant a deed duly executed by herself and her two trustees, which the defendant declined to receive, claiming that the deed did not convey a good title. Plaintiff claimed title under the will of her grandfather and quit claim deeds from all of testator’s children and the wives of his married sons. The following are the provisions of the will:
    11 And all the property and interests originally intended to be bequeathed to my son Wilfred, I now revoke and nullify and bequeath the same to my son Henry Eamsay, Jr., and my daughter Isabelle Eamsay, in trust for my dear little granddaughter Nellie Eamsay, daughter of my son Wilfred, to be used especially for her interests, 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.” The property in question is included in the foregoing devise.
    
      S. W. Jackson, for pl’ff; De Remer & Angle (Edwin C. Angle, of counsel), for def’t.
   Herrick, J.

—The trust intended to be created for the benefit of the plaintiff, Nellie Eamsay, 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 R. S., 728, § 49; Birdseye Stat., 3177, § 5.

Here the words of the devise are “ in trust for my granddaughter, Nellie Ramsay, to he 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 id., 416; Syracuse S. Bank v. Holden et al., 105 id., 415; 8 St. Rep., 29.

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 receipt of the rents and profits thereof, jn 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 R. S., 727, § 47; Birdseye Statute, 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, that 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; 34 St. Rep., 104; Whitney v. Whitney, 43 id., 841-55, 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. Therein ainder 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 R. S., 722, § 13; Birdseye Statute, 2526, § 80; and that remainder could be conveyed by such person, it. being a future expectant estate. 1 R. S., 725, § 35; Birdseye Statute, 2529, § 102; Dodge v. Stevens, 105 N. Y., 585; 8 St. Rep., 671.

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, isssue joined in giving a deed of such property to the plaintiff y 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 conditions of the submission the plaintiff is entitled to judgment against the defendant for the sum of seventy-five dollars, 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.  