
    Eliza Van Schuyver, Respondent, v. Charlotte A. Mulford et al., Appellants.
    (Argued December 11, 1874;
    decided January 19, 1875.)
    
      It seems, that adverse claims to real property cannot properly be determined in an action for partition. The title of the parties should he first established by the proper action before proceedings for a partition.
    Where an estate is vested under a will in a trustee, upon several independent trusts, one or more of which are valid aiid the others void, the latter will be rejected and the estate of the trustee will be upheld to the extent necessary to enable him to execute the former.
    The will of M., by separate and independent clauses, gave to liis wife the rents, incomes and profits of his estate, real and personal, during her. life, to the extent necessary to her support; in case they were insuffi- . cient, he directed his executor and trustee to take and pay to her, from the body of the estate, what should be necessary from time to time. In another clause he bequeathed the rents, income and profits after the death of his wife to his two daughters during life, and after the death of the wife and daughters, he devised and bequeathed the estate to the • issue of his said daughters. Held, that the provision for the wife was valid and would be sustained, although the devise over was void.
    
      Knox v. Jones (47 N. Y., 389) distinguished.
    Appeal from-a judgment of the General Term of the Supreme Court, in the fourth judicial department, affirming a judgment in favor of plaintiff, entered upon the decision of the court at Special Term.
    This was an action for the partition of certain lands situate in the city of Rochester, of which Charles Mulford died seized. The deceased left a will which, after a bequest to his wife, the defendant Charlotte A. Mulford, contained the following clauses:
    “ Third. I give to my said wife the interest, rents, incomes .and profits in any manner arising from my estate, both personal and real, or from any money which may be realized from any life insurance policies I may hold at the time of my. death, for and during her natural life, to the extent necessary and sufficient for her support.
    “ Fourth. In case the said interest, rent, incomes and profits derived from my estate shall be insufficient for the necessary support of my said wife, then I hereby direct my said executor and trustee to take so ranch from my said estate from time to time as shall be necessary therefor, and pay the same to my said wife, or for her necessary support, from time to time, as shall be needed.
    “ Fifth. I hereby will and bequeath equally to my daughters Eliza, now of Bay City, Michigan, and Flora A., now of Lawrence, Kansas, the rents, incomes and profits arising from my said estate (after the death of my said wife) for and during their natural life; and after the death of my said wife and daughters, my said estate shall belong to and become the property of the children of the said Eliza and Flora A., by any husband they may have, the one-half thereof to belong to the children of the said Eliza, and the one-lialf thereof to the children of the said Flora, or if either of them shall die without children then the children of the other of them shall take the whole of my said estate ; but in case either of said daughters shall become distressed for necessary means, then my executor and trustee may advance to the one or both in need so much as shall be absolutely necessary for their use from time to time from my said estate; and in case the income of my said estate should be more than the’ necessities of my said wife should require for her generous support during her lifetime, then such overplus I direct my said executor and trustee to divide equally and pay over to my said daughters annually and from time to time as the same may accumulate, and in ease the income of my said estate should not exceed the actual necessities, of my said wife, and my said daughters should be, both or either of them, so circumstanced that their necessities require it, then I direct my said executor and trustee to divide the said income equally between my said wife and the daughter requiring it, or both if necessary, and .pay over to them the same from time to time according to their several necessities.
    “ Sixth. In case my said daughters shall die leaving" no children, or in case their children die leaving no children, then my said estate shall belong to my relatives according to the statutes in such case made and provided.
    
      “ Seventh. I hereby authorize my executor and executrix within named to sell and convey any of my real estate, whenever it shall become necessary for the support of my said wife or daughters, as herein provided, or when said estate shall be benefited thereby for the largest sum that can be got for the same, and on such terms as shall be by them thought most desirable, and to execute and deliver good and sufficient deeds thereof upon such sale, and my said trustee is directed to invest the proceeds thereof in first class bond and mortgages or first class United States government securities.
    “ Eighth. I hereby nominate and appoint Henry Sargent executor, and my said wife, Charlotte A. Mulford, executrix, of this my last will and testament, and the said Henry Sargent trustee of my estate, hereby revoking all former wills by me made.”
    The plaintiff, who was a daughter of the deceased, claimed the will to be void so far as it affected the testator’s real estate, and- that she was entitled, as heir at law, to her proportion thereof. The Special Term so decided and directed partition.
    Further facts appear in the opinion.
    
      
      J. C. Cochrane for the appellants.
    If some of the provisions of the will are valid and others void, it must be sustained so far as is necessary to give effect to those that are valid. (Schettler v. Smith, 41 N. Y., 328-337 ; Post v. Hover, 33 id., 593 ; Manice v. Manice, 43 id., 383 ; Harrison v. Harrison, 36 id., 543; Jackson v. Waldron, 13 Wend., 178.) Under general language a trustee does not take by implication, except so far as is necessary to execute the trust. (Post v. Hover, 33 N. Y., 593 ; Hawkins on Wills, 143 ; Downing v. Marshall, 23 N. Y., 366, 379 ; Crittenden v. Fairchild, 41 N. Y., 289 ; Moore v. Littel, id., 66.)
    
      Daniel Wood for the respondents.
    The trust under the will is void as it suspends the power of alienation of real estate for a longer period than two lives in being at the creation of the estate. (2 R. S. [3d ed.], 10-15, 58, 59, §§ 1-4 ; Harris v. Clark, 7 N. Y., 242; Jennings v. Jennings, id., 547; Hawley v. James, 16 Wend., 61; Boynton v. Hoyt, 1 Den., 53; Knox v. Jones, 47 N. Y,, 389 ; Kilpatrick v. Johnson, 15 id., 322.) Though a will gives power to sell real estate wdthout directing a sale, it does not convert it into personal estate. (Harris v. Clark, 7 N. Y., 242 ; Kane v. Gott, 24 Wend., 641; 2 R. S. [3d ed.], 58, §§ 1, 2.) A devise of mere equities resting upon ah illegal trust is void. (Armory v. Lord, 9 N. Y., 403 ; Manice v. Manice, 43 id., 303; Arnold v. Gilbert, 3 Sandf. Ch., 531; McSorley v. McSorley, 4 id., 414; McSorley v. Wilson, id., 515 ; Field v. Field, id., 528, 549.) Plaintiff had a right to challenge in this action the validity of the devise of the real estate contained in the will. (Laws of 1853, chap. 238 ; Woodruff v. Cook, 47 Barb., 304.) Where a will is propounded for probate the surrogate has full jurisdiction to decide all questions relating to its execution, competency of the testator or its invalidity. (2 R. S. [3d ed.], 122, § 27 ; Campbell v. Logan, 2 Bradf., 90, 92 ; Burder v. Hill, 1 id., 360-374; In re Lindsay, 2 id., 204; Creely v. Ostrander, 3 id., 107; Buell v. Schwarts, 4 id., 12; Hill v. Burger, 10 How., 264.) The decision of the surrogate constitutes a final adjudication, as to the validity of this, "will, and cannot be attacked in another suit or collaterally impeached. (Vanderpool v. Van Vaulkenburgh, 6 N. Y., 190 ; 2 R. S. [3d ed.], 121, § 21; 7 Paige, 397; 3 Barb. Ch., 481; Heyer v. Burger, 1 Hoff. Ch., 1; Colton v. Ross, 2 Paige, 396 ; Lawrence v. Parsons, 27 How., 26; Monell v. Dennison, 17 id., 422 ; Burnstead v. Burnstead, 31 Barb., 661; Bolton v. Brewster, 32 id., 389.)
   Allen, J.

This is an action for the partition- of lands in the city of Bochester of which Oharles Mulford died seized. The plaintiff, a daughter of the deceased owner, claims to be entitled as an heir at law. The defendants are Mrs. Mulford the widow, Mrs. Wright another daughter of the deceased owner, and the executor and executrix named in his will, and certain tenants in possession of parts of the premises sought to be partitioned. The title of the plaintiff is controverted by the defendants, who set up the will of the former owner and insist that the premises and the whole estate therein are effectually devised in and by such will to persons other than the plaintiff, and that she has no estate therein as heir at lawT, and no estate" or interest in the premises except a contingent beneficial interest in the rents and profits for her life, after -the death of her mother, Mrs. Mulford. The plaintiff claims in hostility to the will, and alleges the invalidity of the disposi-. tion attempted to be made of his property by the testator. Although in form an action of partition it is really a suit to determine and settle the title to the realty mentioned in the pleadings. This form of action is at least a doubtful procedure for the trial of adverse or hostile claims to real property. The title of the parties should be first established by the proper action before proceedings taken for a partition. There should be a tenancy in common, and an actual or constructive possession by the plaintiffs. (2 R. S., 317; Brownell v. Brownell, 19 Wend., 367 ; O' Dougherty v. Aldrich, 5 Den., 385 ; Striker v. Mott, 2 Paige, 387; Bradstreet v. Schuyler, 3 Barb. Ch., 608.) An action for partition cannot be made a ■ substitute for an action of ejectment, or other action to establish the legal title of adverse claimants to real property. But as the parties have proceeded thus far in the litigation without objection to the form of the remedy, the merits of the controversy will be considered so far as may be necessary to determine whether the devise to, and the provision for the wife of the testator, under the third and fourth paragraphs of the will, are valid.

If the provision made for Mrs. Mulford is inseparably connected with and dependent upon the other dispositions of the will especially the devise to the daughters and their children as a part of a general scheme for the disposal of the property of the testator, and the whole estate therein, the case is directly within Knox v. Jones (47 N. Y., 389), and the entire devise void, and the plaintiff is well entitled as heir at law to an equal moiety of the estate of the deceased as tenant in eommon with her sister, subject to the dower right of her mother in the realty, and her rights to share in the personalty. The absolute ownership of the personalty and the power of alienation of the realty would be suspended for a longer period than two lives in being at the death of the testator. (1 R. S., 723, §. 15 ; id., 773, § 1.) If however the devise to Mrs. Mulford of the rents and profits for her life is independent of the other and subsequent disposals of the estate in controversy, that is of the devise of the rents and profits of the same property to the daughters for their lives after the death of Mrs. Mulford, and the devise over of the estate upon their death, the action of the plaintiff must necessarily fail. She would have in that event no present right of action for a partition of the realty, whatever her rights might be upon the termination of the life estate of her mother. It matters not so far as the plaintiff’s present right to a partition is concerned whether the-legal estate for the life of Mrs. Mulford is in her under the enactment (1 R. S., 727, § 2) declaring that every person entitled to the possession of lands and the receipt of the rents and profits thereof shall be deemed to have a legal estate therein of the same quality and direction, and subject to the same conditions as his beneficial interest, or in a trustee under a general trust to receive and pay-over to her the rents and profits during her life. In either event the plaintiff would be barred of her action for a partition. If the estate was vested under the will in a trustee upon several independent trusts, some of which are legal while others are in contravention of the statute regulating uses and trusts, or the statutes against perpetuities, the estate of the trustee will be upheld to the extent necessary to enable him to execute the valid trusts, and will only be void as to the illegal or invalid trusts. (Parks v. Parks, 9 Paige, 107; Oxley v. Lane, 35 N. Y., 340 ; Harrison v. Harrison, 36 id., 543 ; Schettler v. Smith, 41. id., 328.) It was not intended to question this doctrine in Knox v. Jones (supra). On the contrary it was reaffirmed and Manice v. Manice (43 N. Y., 303), cited to the rule that a void trust which is separable from other valid trusts may be cut off when the trust thus defeated is independent of the other dispositions of the will and subordinate' to them, and not an essential part to the general 'scheme; which was merely a statement in another form of the general proposition, that valid and void trusts when independent of each other may be separated, and the one rejected and the other sustained. (Parks v. Parks, 9 Paige, 107.) In Knox v. Jones there was not only the feature of a single trust, but as ~was held that trust was for one general purpose, viz., to provide for the brother and sisters of the testator from the income of his estate during their lives, and the life of the survivor, and no evidence of an intent of the testator could be discerned within the four corners of the will to provide for the brother to whom the first life estate in the income was given independent of and disconnected with the subsequent provision for '.his sisters, and the devise over on their death. The entire trust for the brother and sisters, together with the ultimate devise over of the estate after of the death of all was included in a single paragraph (the third) of the will, and constituted but a single disposition of the residue of the estate .not before in the same will disposed of. This ease is distinguishable from that of Knox v. Jones, and the testator in the case before us had two distinct and independent objects in view in the disposition he made of his estate. The first and primary object indicated in the third and fourth paragraphs of the will, distinct in character from the ultimate disposal of his estate provided for in separate and independent clauses of the will, was to provide for the support of his wife during her life from the income of the estate primarily, but devoting his whole estate to that purpose should it become necessary. This particular intent of the testator should be carried out so far as it is not inconsistent with the general intent as expressed in the will. The intention of the testator to give to his wife a beneficial interest in all the income of his estate subject to certain contingent charges thereon during her life, is perfectly apparent. The contingent charges in favor of the daughters do not interfere with this particular intent or connect this specific provision for the wife with the ultimate disposal of the estate for the benefit of the daughters and their issue. They operate merely to limit the beneficial interest of the wife and have no effect beyond her life or upon the general and ultimate disposition of the estate by the fifth clause of the will. In the latter clause of the will, the testator devises his whole estate, after the death of the wife, to his daughters and their issue, limiting the interests of the daughters to the income, and giving the body of the estate upon their death to their issue under specified restrictions and limitations. As the devise over to the issue is not to take effect until after the death of the wife and the daughters, it is void as a restraint upon the power of alienation for a time exceeding two lives in being at the death of the testator. That question is not properly before us upon this appeal. It is enough that the testator has given to his wife the rents and income of his estate during her life, and that this gift is separate from and independent of the objectionable devises under the fifth paragraph of the will, and that the plaintiff is not entitled at this time to claim as heir at law, either the possession of the property or the income of the estate. Parks v. Parks (supra) affirmed in error December, 1842, is in principle decisive of this appeal, and was followed in Leggett v. Perkins (2 Comst., 297), although Judge Bronson doubted its authority.

The judgment must be reversed, and as the right of the plaintiff rests entirely upon the construction of the will of Mr. Mulford, and a new trial cannot change the rights of the parties, the complaint must be dismissed with costs.

All concur, Chüboh, Oh. J., not sitting.

Judgment reversed, and judgment accordingly.  