
    Frank T. Staples, as Trustee under the Last Will and Testament of David Wakeman, Deceased, Respondent, v. Agnes Hawes, and James Staples, as Executor of the Last Will and Testament of David Wakeman, Deceased, Respondents, Impleaded with Mary Hawes and Others, Appellants.
    
      'Trust, suspended not upon lives but for a period, of time_— not sustained as a power in trust — rule as to the election of an heir at law who accepts a devise and bequest •— not applicable where a will is made in one State and an invalid trust relates to real property in another.
    
    ■A testator, who, at the time of his death, was a resident of Connecticut and was ■seized of real property, part of which was situated in that State and part in the ..'State of New York, left one daughter, Agnes Hawes, as his only heir at law •■and next of kin, to whom, by the 2d clause of his will, he gave the use of a farm in Connecticut during her life, and, by the 3d clause, gave to her all the personal property thereon; by the 4th clause he gave such farm to his granddaughter Mary Hawes, subject to the life use of her mother, Agnes Hawes, and then disposed of the residue of his real estate as follows: “ 5th. I .•give, devise and1 bequeath the rest and residue of all my property, both real ••and personal, and wherever situated, to Frank T. Staples, in trust for my ¿grandchildren, Mary Hawes, David Henry Hawes and Isaac Hawes, my adopted ■son, Jesse Wakeman, and my daughter, Agnes Hawes, to be divided and distributed among them, share and share alike, on Dec. 1, 1910. 5th. I direct my said trustees to pay the income of said trust property to said David Henry Hawes, Mary Hawes, Isaac Hawes, Jesse Wakeman and Agnes Hawes, semiannually.”
    Tn an action brought by the trustee for an adjudication upon his rights and the title to certain real estate of the testator situated in the State of New York, it was
    
      Meld, that the 5th and 6th clauses should be construed together, and that as so construed they indicated that it was the intention of the testator to create an estate .in the trustee, upon which were limited remainders to the grandchildren and the adopted son, and that as the power of alienation of the New York real ■estate devised thereby was suspended, not upon lives but upon a term of years, such devise was void, and as to such land the testator died intestate and the ’title thereto was in the heir at law, Agnes Hawes;
    'That the provisions of the 5th and 6th clauses could not bo construed as creating a power in trust;
    That the question whether Agnes Hawes, having lived upon the farm mentioned in the 2d clause of the will, and having accepted the legacy mentioned in the 3d clause, and having taken money from the trustee at different times under order of the court, had made an election to take the specific devise contained in the 2d and 3d clauses of the will, was not properly before the court for consideration.
    
      
      Semble, that if the whole of the estate of the testator were in the State of New York for adjustment and administration, it might be that a person accepting; a benefit under the will would be called upon to elect.
    
      Semble, that where a w'ill is made in one State professing to pass both real and’ personal property, but is not executed so as to pass real estate in another State,, the heir at law is not put to an election in the latter State.
    Appeal by the defendants, Mary Hawes and others, from a judgment of the Supreme Court in favor of the plaintiff, and of the defendants Agnes Hawes, and James Staples, as executor, etc., of David Wakeman, deceased, entered in the office of the clerk of the-county of Hew York on the 11th day of Hovember, 1898, upon the decision of the court rendered after a trial at the Hew York Special Term.
    
      Edward H. Childs, for the appellants.
    
      Treadwell Cleveland, for Agnes Hawes, defendant, respondent.
    
      William D. Leonard, for the plaintiff, respondent.
    
      Charles W. Coleman, for the guardian ad litem of infant defendant Jesse Wakeman.
    
      John Biddle Clark, for James Staples, executor, etc., defendant,, respondent.
   Patterson, J.:

This action was brought by a trustee for the construction of the-will of David Wakeman, deceased, who at the time of his death was a resident of Connecticut, and who by his will disposed of }3er-sonal property and real property, some situate in Connecticut and some in the State of Hew York. The testator left as his only heir at law and next of kin his daughter, Agnes Hawes. By the 2d clause of his will he gave to her “ the use and occupancy during her natural life of my farm situated in Southport in the town of Fairfield ” (Connecticut), “ including the mill on said property and the water right in Sasko creek adjoining.” By .the 3d clause he gave to his daughter all the personal property of every nature whatsoever situated on that farm. By the 4th clause he gave to his granddaughter, Mary Haw.es, the said farm, “including the mill and water right,” subject to the life use of her mother,. Agnes Hawes, He then proceeded to dispose of the residue of his estate as follows r

5ih. I give, devise and bequeath the rest and residue of all my property, both real and personal, and wherever situated, to Frank T. Staples, in trust for my grandchildren, Mary Hawes, David Henry Hawes and Isaac Plawes, my adopted son, Jesse Wake-man, and my daughter, Agnes Hawes, to be divided and distributed among them, share and share alike, on Dec. 1, 1910.
6th. I direct my said trustee to pay the income of said trust property to said David Henry Hawes, Mary Hawes, Isaac Hawes, Jesse Wakeman and Agnes Hawes, semi-annually.”

The will was admitted to probate in Connecticut on the 3d of October, 1896. On the 10th of April, 1897, it was admitted to probate in the State of Hew York. The complaint sets forth that the testator died seized of real estate situate in the county of Hew York and in the county of Kings, in the State of Hew York, and that it is included in and forms part of the rest, residue and remainder of his estate. It is also alleged that the testamentary provision as to the rest, residue and remainder is valid and effectual in the State of Connecticut, but it is claimed that, as to the realty situate in Hew York, it is void by the law of Hew York; and judgment of the court is prayed as to the validity and effect, under the laws of Hew York, of the testamentary disposition of the rest, residue and remainder of the estate, so far as the same affects real property, of which the testator died seized, situate in Hew York. It appears that all of the defendants interested in the will, except Agnes Hawes and the executor, are infants, and the usual infants’ answers have been interposed by guardians ad litem. The defendant Agnes Hawes answered, and claims that the testamentary dispositions of the 5th and 6th clauses of the will are void, and that, she is entitled, as sole heir at law, to a fee simple in the real estate disposed of by those clauses, situate in the State of Hew York. It was decided at the Special Term that the 5th and 6th clauses of the will, so far as they relate to the real estate situate in Hew York, are void, as unlawfully suspending the power of alienation of that property. Among other things, the justice at Special Term found: “ That the said defendant Agnes Hawes now lives upon the farm mentioned in the second paragraph of the will of .the said David Wake-man, deceased, and has accepted the legacy mentioned in the third paragraph of said will, and has received from the plaintiff Frank T. Staples, as trustee, certain sums of money, at different times, under order of the court.” The evidence upon which this finding is made does not appear in the record. By the judgment entered, the dispositions made by the 5tli and 6th clauses are declared void, and it was adjudged that Agnes Hawes is entitled to the whole of said real estate in fee as sole heir at law, and that she is not estopped from asserting the invalidity of those clauses; and this appeal is taken from that judgment.

The first point presented for consideration is whether, by the terms of the will, the absolute power of alienation is suspended contrary to the terms of the statute. A period measured by years, and not by lives in being, during which there will be no person in existence by whom the absolute estate in possession can be conveyed, brings a devise within the rule against the unlawful suspension of the power of alienation. If authorities are needed for this proposition, they are abundant. (Phelps' Executor v. Pond, 23 N. Y. 69 ; Beekman v. Bonsor, Id. 306; Leonard v. Burr, 18 id. 107 ; Bascom v. Albertson, 34 id. 584; Cruikshank v. Home for the Friendless, 113 id. 337.)

The contention of the appellants is that, under a proper construction of this will, there is a gift directly to the persons, other than the plaintiff, named in the 5th clause of the will. The rule is invoked that that construction will be given which will support a will, rather than that which will defeat it, and that, therefore, the 5th and 6th clauses may be considered separately; and it is argued that so doing it would result in the otli clause merely providing for a passive trust, and in the 6tli clause containing a present gift spelled out from the direction to pay the income to the persons therein named, that being, it is claimed, equivalent to a gift of income which would carry with it the estate. But the real test of construction here, as in every other will, is the intention of the testator; and it would seem manifest that the 5th and 6tli clauses of the will must be construed together, and that as a consequence it was the undoubted intention of the testator to create an estate in the trustee upon which were limited remainders to the grandchildren and the adopted son. By the 5th clause the devise of the residuary estate is directly to Frank T. Staples in trust, to be divided and distributed share and share alike on December 1, 1910. By the 6th clause it is the trustee who is to pay the income, and the gift of the income is by necessary implication to the trustee. The trust purpose as expressed in the 6th clause is (irrespective of the question of the term) entirely lawful as an express trust under the 3d subdivision of the 55th section of the Statute of Uses. It is a direction to pay over rents, issues and profits, and although those words are not used, the requirement to pay over is tantamount to a command to apply to the use of. (Leggett v. Perkins, 2 N. Y. 297; Leggett v. Hunter, 19 id. 454.) The authority to receive rents is necessarily implied. It is not required that the purposes of the trust should be stated in the words of the statute if a purpose within the statute is plainly set forth in the language used. (Tobias v. Ketchum, 32 N. Y. 319 ; Vernon v. Vernon, 53 id. 351.) The two clauses must be read together to ascertain the testator’s intention. By the 5th clause, standing alone, there may be nothing which requires the trustee to have a title or an estate, but by the 6tli clause the purpose of the trust is declared and an active duty is required, namely, to pay over income to the same persons who will be entitled to the land at the date fixed in the 5th clause. From the structure of these clauses, it seems beyond question that the testator intended to confer an estate upon the trustee. The gift is directly to him. He is named in the will in no other relation than that by which he is designated, viz., a trustee. He is neither executor nor a beneficiary under the will. The present words of gift are to him, and he is to make division at a certain time. Meanwhile, he is to pay over the income of the trust property semi-annually to the beneficiaries. Here are a trustee, a trust purpose, an estate aud beneficiaries. This construction is emphasized when it is observed that there is no gift to any of the beneficiaries as tenants in common or jointly or of undivided interests, but a distinct intention is manifested that each of the beneficiaries shall receive a specific segregated share, shall take it individually, shall hold it individually and separately, and shall not take it until it is severed on the 1st day of December, 1910. Futurity is, therefore, annexed to the substance of the gift. Until the period of division arrives, neither of the beneficiaries can take the separated share, which alone the testator intended should be taken. Meanwhile, there is a trust estate in the trustee Avhich he cannot alien, for it is bound to him during the term, and the beneficiaries cannot alien so as to convey the property in possession freed from the trust estate. Therefore, it follows that the power of alienation of the Hew York real estate is suspended, not upon lives, but upon a term of years. If the provisions of the 5th and 6th clauses could be construed only as conferring a power in trust and not a trust estate, that construction would be preferred for the purpose of supporting the will, but we do not think they are susceptible of that construction, or that the beneficiaries in any view take such interests as would enable them by uniting in a conveyance to extinguish a power.

It is argued by the appellant, however, that the judgment is erroneous because the defendant Agnes Hawes, the heir at law, has made an election to take the specific devise and bequest to her contained in the 2d and 3d clauses of the will, and, therefore, the judgment declaring that the Hew York real estate is vested in her in fee simple cannot be sustained. We do not see how this question of election can properly be considered in this case. It is true the court below has found that the defendant Agnes Hawes now lives upon the farm mentioned in the 2d paragraph of the will, and that she has accepted the legacy mentioned in the 3d paragraph, and that she has also taken money from the trustee at different times under order of the court; but there is nothing found by the court, nor is there anything contained in the record, to indicate that those facts constitute a binding election, that is to say, one made with a full knowledge of rights or a full understanding of the relative values of properties. To make acts effectual as an election, the person alleged to have elected must have done them with knowledge of his rights and with the intention of electing. (Stratford v. Powell, 1 Ball & B. 1; Brown v. Brown, L. R. [2 Eq.] 481; Heron v. Hoffner, 3 Rawle, 396 ; O'Driscoll v. Koger, 2 Dessau [S. C.], 295 ; Pinckney v. Pinckney, 2 Rich. Eq. 218; Hall v. Hall, 2 McCord Ch. 269, 280 ; Adsit v. Adsit, 2 Johns. Ch. 448.) A binding election may be inferred from the retention by a legatee for a long time of what is taken under a will, but -whether what is done amounts to an election or not, must always be determined by the particular circumstances of each case; and there is nothing here from which, as matter of law, it can be ad judged that such an election was made by the testator’s daughter. But we think the question of election is not before us in this case, because this action is instituted by the trustee, who applies to the court for an adjudication upon his right and -title to certain real estate situate in this State. The parties who are or may be interested in that estate were brought in as defendants in the action by the trustee; and his right to an adjudication and the duty of the court to adjudicate upon his title are not and cannot be questioned. Finding that he lias no title, that the devise to him is void, that in effect the testator has died intestate as to the Hew York realty, title to the land is in the heir at law, and it can go to no one else. She, being brought in as. a party defendant, has merely set up what is apparent, namely, the invalidity of the devise of the Hew York real estate, that that must be decided by the law of Hew York and that she is the only heir at law, and she asks for an adjudication of her rights as such heir at law. There is then presented merely a case of a court of a State in which certain real estate is situate called upon to determine whether a devise of that real estate is valid under a foreign will. Where a will is made in one State professing to pass both real and personal property, but is not executed so as to pass real estate in another State, the heir at law is not put to an election in the latter State. (Jones v. Jones, 8 Gill, 197; Maxwell v. Maxwell, 2 De G., McN. & G. 705.)

If the whole estate of the testator were in the State of Hew York for adjustment and administration it might be that a person accepting a benefit under the will wonld be called upon to elect. Such cases are Hawley v. James (16 Wend. 61); Leonard v. Crommelin (1 Edw. Ch. 206); Thompson v. Carmichael's Executors (1 Sandf. Ch. 387); Chipman v. Montgomery (63 N. Y. 221). It was suggested on the argument that Chipman v. Montgomery was criticised by this court in the case of Steinway v. Steinway (24 App. Div. 104), wherein it was said that it was no longer a controlling authority. That was said, but not upon this point. In the Steinway case the question of election was not considered nor intended to be. The criticism of Chipman v. Montgomery therein made related only to the subject of jurisdiction and to the right of the next of kin taking a legacy under a will to maintain an action for the construction of a trust as to ptersonal property without surrendering what he had taken specifically under the will, and was based upon later decisions of the Court of Appeals. Whether on the final settlement of the whole of the testator’s estate in Connecticut, and on a bill appropriately filed, the courts of that State would require the heir at law to elect between talcing outside of the will real estate in New York, or the provision made as to the Connecticut real estate and the personal property, is a question we do not have to determine. In Van Dyke's Appeal (60 Penn. St. 481) Judge Sharswood compelled an election and worked out equities in favor of disappointed beneficiaries under a will where there was a bequest of personal property to an heir at law in Pennsylvania and a devise to other parties of real estate in New J ersey, which devise was void in New Jersey and the title to which devolved upon the heir at law. In the case before us we cannot put the heir at law to an election.

The judgment should be affirmed, with costs.

Barrett and Rumsey, JJ., concurred; Van Brunt, P. J., and McLaughlin, J., concurred in the conclusion that the trust is void.

Judgment affirmed, with costs.  