
    Alice Horsfield, Respondent, v. William T. Black, Individually, and William T. Black and James Appleby, as Administrators with the Will Annexed of William Appleby, Deceased, and Others, Appellants, Impleaded with Others, Respondents.
    
      Will ^ a trust to executors to apply the income of the residue of an estate to the support . of .á life beneficiary and on, her death to sell the property — the trust does not pass to ■administrators — an action for the partition of the. real property is not maintainable.
    
    ,A testator by his will gave the residue of his testate to his executors Or the survivor of them in trust to collect the rents and income .and apply a certain - portion thereof to the' support and maintenance of one of his daughters, and on the death of his said daughter, to sell such real and personal estate and divide-the proceeds among certain designated beneficiaries. ‘ -
    
      Held, that as the will created two active, valid trusts, the trustees took the legal . title to the testator’s real estáte,- and that the persons among whom the proceeds of the estate were to be ultimately distributed took as legatees and -not as devisees, and, therefore, could' not maintain an action to partition such real estate;, ' ;
    That upon the death of the trustees, the trust devolved upon the Supreme tiourt, and not upon administrators with the will annexed of the testator.
    Appeal by the defendants, William T. Black, individually,. and William T. Black and James Appleby,, as administrators - with the will annexed of William Appleby, deceased, and others, from an interlocutory judgment of the Supreme Court in favor of the -plaintiff and certain of the defendants, entered in the office of the clerk of the county of New York on the 4th day of March, 1899, upon the report of a referee.
    
      Joseph A. Flannery, for the appellants.
    
      Samuel Campbell, for the respondent.
   Van Brunt, P. J.:

This action was brought for the partition of certain real estate of which William Appleby, on the 1st of January, 1870, died seized. Said Appleby left a last will and testament which was duly admitted to probate, in which, after making certain specific devises and bequests, he provided as follows:

“ All the rest, residue and remainder of my real and personal estate which I may die seized or possessed of, or entitled to at the time of my decease, situated in the States of New York or New Jersey, or either of said States, and in any other State of the United States, or wheresoever the same may be at the time of my decease, I give, devise and bequeath unto my executors and trustees hereinafter named.

“ To have and to hold the same unto them and the survivor of' them forever, to, for and upon'the following uses, trusts, intents and purposes, and to, for and upon no other use, trust, intent or purpose-whatever, that is to say, in trust in the first place to take possession and charge of the said real and personal estate mentioned in this-fourth clause of this my will, and rent out said real estate, and to-invest my said personal estate at interest, and out of the said rents- and profits of my said real estate, after deducting all taxes, assessments, insurance, repairs and other necessary expenses, and out of the income of my said personal estate, to pay over for and towards-the support and maintenance of my said daughter Sarah Ann,, yearly and every year during her. natural life, in quarter yearly payments the sum of four hundred dollars.

“ In trust in the last place upon the decease óf my said daughter Sarah Ann, to sell and dispose of my said real and personal estate-mentioned in this fourth clause of my will, and to divide the proceeds arising therefrom equally among my children and grandchildren, and no others, namely: Joseph 0. Appelby, James. Appelby,, John A. Appelby, Walter A. Appelby, and the-children of my daughter Sarah Ann (the children of my daughter Maiy Eliza are not to receive any share or part thereof under this clause of my will, I having provided for them in the second clause of this my will). * * * -

" “ Lastly. I do hereby constitute and appoint my sons Joseph 0. Appelby and James Appelby to be executors of this ..my last will ■and testament, hereby revoking and making null and void all former and other wills by me at any time heretofore made. And I do hereby constitute and appoint my said executors and the survivor of thenv.trtistées for all the'real and personal estate, except the real estate given unto .my daughter Mary Eliza Green for and during her ' natural life, and at her decease to her children, and except the personal estate given to my said daughter Mary Eliza. Green,, and •except all the personal estate given unto my daughter Sarah Ann Appelby. And also trustees, for all and every of the purposes., of this my will, and I do hereby, authorize them, my said executors and trustees, to- sell and dispose of. the said real and personal estate so given and bequeathed unto them in trust either at private, or public salé, and upon such sale to make,, execute and deliver to the purchaser or purchasers thereof, good' and sufficient conveyance therefor in the law.”

. By codicils to his will certain changes, were made in the ultimate beneficiaries, and the provision for the testator’s daughter Sarah Ann was increased from'$400 to $700.

James Appelby and Joseph O. Appelby, named in the will as executors and trustees, are both deceased, the survivor having died on- the 30tli of January, 1887. James Appelby was discharged ¡as executor in October, 1878. In July, 1883; William T. Black and James Appelby, 2d$ were appointed administrators with the will annexed of said- William Appelby.; Sarah Ann Appelby died on the 2d of February, 1895. The plaintiff, claiming an interest in the residuary real estate of the testator, brought this action in partition, and the' administrators with the will annexed interposed answers alleging that the title -vested in them as such administrators, and ■ that they had the sole right to convey the ¡same. The court held that the plaintiff had title and could maintain the action, and from such judgment this appeal is taken. ....

It seems to us that the parties to this action have entirely lost sight of the fact of the devise by the testator to trustees of ins real estate. Such devise was to the trustees for trusts recognized by the Revised Statutes.

The first trust was valid under subdivision 3 of section 55 of the Revised Statutes (Vol. 1, 728), namely, to receive rents and profits of land and apply them to the use of any person during the life of such person, or for any shorter term. Here the devise was to receive the rents, issues and profits, and to apply $700 thereof to the use of his daughter Sarah Ann. It is claimed, however, that there being no disposition of any excess of such issues and profits over the said $700, there is some infirmity in the trust. But section 40 (R. S., vol. 1, 726) expressly provides for that contingency, and states that, where no valid direction is given for the accumulation of such rents and profits, the same shall belong to the persons presumptively entitled to the next eventual estate.

The testator then states that the devise is upon the further trust, upon the decease of his said daughter, to sell and dispose of his real estate, and to divide the proceeds amongst certain beneficiaries therein named — this being an active trust, expressly recognized by subdivision 2 of said section 55 of the Revised Statutes, namely, to sell, mortgage or lease lands for the benefit of legatees, or for the purpose of satisfying any charge thereon. Here the testator directed his trustees to sell the land and to divide the proceeds amongst his legatees. The persons named took as legatees under the provisions of the will and not as devisees, the legal title to the residue of the real estate being always in the trustees. How the trustees having died, and the trust, pursuant to the statute, having devolved upon the Supreme Court, it becomes the duty of the court to appoint some person to carry out this trust on its. behalf, as provided by section 68 of the Revised Statutes (Vol. 1, 730). How the administrators with the will annexed can take anything in respect to this' part of the estate, or exercise any authority over it, is inexplicable. It might very well have been, had the trust attempted to be created by the will not been for purposes' recognized in the Revised Statutes, that the provision in regard to sale and division might have been executed as a power in trust by the administrators with the will annexed. But the trust was an express trust recognized by the statutesthe title vested in the trustees, and they, or their successors, are the only persons who'can carry the provisions of the will into effect.

It follows, therefore, that neither the plaintiff nor the administrators with the will annexed, nor any of the other parties interested in this will, can acquire' their interest in this residuary estate, except by the execution of the trust by the court through its agent. The necessary result seems to be that the judgment must be reversed and the complaint dismissed, without costs to either party,

Barrett, Rumsey, Ingraham and McLaughlin, JJ., concurred.

Judgment reversed and complaint dismissed, without costs to either party'.  