
    William B. Greene, App’lt, v. John B. Greene, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed February 24, 1891.)
    
    Wills—Suspension oe poweb op alienation—Tbust.
    Testator devised the residue of his estate to his three sons, as trustees, to carry out the provisions of his will, and directed them to hold it for six years, pay the legacies, and then hold it for their joint benefit, and annually account to each other' for the rents, etc. It forbade their selling or alienating a certain portion for six years, gave power to sell the rest, but forbade distribution until the end of the six years, and provided that if either should attempt a division or partition in the meantime, he should forfeit his share. It gave power, however, to mortgage to pay legacies, if necessary, and declared that the estate should belong to said sons at the ■ expiration of the period aforesaid. Reid, that the three sons had every estate and interest in possession in remainder, and in reversion; or, m other words, the whole fee of the property, and that there was no unlawful suspension of the power of alienation.
    
      Appeal from judgment of the supreme court, general term, fifth department, affirming judgment entered upon decision of Erie equity term dismissing complaint as to certain causes of action therein contained.
    
      Thomas M Tyng, for app’lt; Sherman S. Rogers, for resp’t.
    
      
       Affirming 26 M. Y. State Rep., 583.
    
   Gray, J.

Upon this appeal we are asked to pronounce invalid that disposition by the testator of his residuary estate which was made in favor of three of his sons; the plaintiff, another son, being excluded from any share thereof. As an heir he brings this action for the partition of the decedent’s real property, under § 1537 of the Code of Civil Procedure, and he attacks the devise to his brothers, as being void for offending against the statute of perpetuities.

After specific devises of realty the testator, in the fifth clause of his will, gave all his residuary estate “unto my three sons, viz., John B. Greene, Harry B. Greene and Samuel B. Greene, as trustees, to carry out the provisions of this * * * will and to execute the trusts hereinafter specified.’’ In the following eight clauses he directed them to pay certain pecuniary legacies, and he constituted two trust funds for the lives of his wife and a sister. The plaintiff received a pecuniary legacy. In the fourteenth clause testator directed that his “ said trustees shall take and hold my said property and estate and the whole thereof * * * for the period of six years from and after my decease; the estate being chargeable with the payment of the foregoing bequests and legacies, and it being, as I now believe, with the moneyed securities on hand * * * amply sufficient to pay said legacies in full together with the taxes * * * on my real property, so that at the expiration of said period the residue of said real estate * * * should remain unincumbered and intact After the payment of said legacies the said property and estate shall be managed for the joint benefit of my said three sons * * "* who shall annually render to each other a just and full statement of the rents, issues and profits and all transactions relating to said property and estate.” Then follow two provisions, one empowering the trustees to sell all the realty, except certain specific pieces, on certain conditions, and the other enjoining against any partition or division of the estate, devised in trust to his sons, until the expiration of six years, under penalty of forfeiture of the interest of the son offending. Then follows this (the fifteenth) clause:

“ XV. At the expiration of said period of six years the rest and residue of my said estate, real and personal, remaining after the payment of said legacies and debts, shall belong to my said three sons, John B. Greene, Harry B. Greene and Samuel B. Greene, share and share alike, their heirs and assigns forever.”

The last clause in his will is termed by testator as “ explanatory and qualifying.” He says a partition of the estate “as at present situated” would be detrimental to his three sons and that the personalty would nearly suffice to pay the legacies; but in. case of an exigency he authorizes them “ to mortgage the real estate ” for that purpose.

The difficulty which this will .creates in the work of construction exemplifies the value of the rule which is controlling upon the courts in the interpretation of wills, that the intention of the testator, if discoverable and lawful, shall prevail and be effectuated. . In this will the language is involved, clauses are in seem- - ing conflict and some provisions are illegal But, notwithstanding the confusion and conflict of language, a purpose is evident from • a consideration of the whole testament, and that is that the three sons, who are constituted executors and trustees, are to have the whole of testator’s estate which shall remain after the payment of legacies, etc. The idea is prominent that the personalty will suffice for every testamentary provision requiring the use of moneys by the executors. The restriction upon a partition between the sons is, plainly, based upon the desire that the real estate shall be left to improve in value and that its income shall meet any deficiencies in the application of the personalty to the payment of legacies, etc. Of the legality of such a restriction we shall speak hereafter. We shall first see if and how this will, in its residuary scheme, may be upheld.

By the fifth clause the testator, in terms, gives the residue of his estate to his three sons as trustees “to execute the trusts thereafter specified.” Without the aid of this language, we should have no diffculty in holding that that clause conferred a legal estate upon the trustees named, wherever a valid express trust was created.

That principle was expressly declared in Manice v. Manice, 43 N. Y. 303, where there was a general devise of the residuary estate to the executors, in trust for the uses and purposes set forth in the will. It was there considered that such a general devise in trust vested the legal estate in the trustees for such legal purposes as required it to be vested in them and' in other respects it would be inoperative. So, in this case, this general devise in trust may apply to the valid trusts created for the testator’s wife and sister and will vest the trustees with the requisite legal estate. What then is the remaining trust, which the testator has attempted to create? Substantially, the trustees were to hold and manage the residue of the estate for six years, for the joint benefit of themselves, as the three sons, and, at the expiration of that period of time, it was given to them in equal shares, absolutely. Such a trust would be wholly invalid, if for no other reason, because it would be for a period not measured by lives. But there is a fundamental objection to our construing this provision as a trust. To the constitution of every express trust there are essential these elements, namely, a trustee, an estate devised to him, and a beneficiary. The trustee and the beneficiary must be distinct personalities.; or, otherwise, there could be no trust and the merger of interests in the same person would effect a legal estate in him of the same duration as the beneficial interest designed. 2 R. S., 727, §§ 47, 55; Woodward v. James, 115 N. Y., 346; 26 N. Y. State Rep., 147. That the legal and the beneficial estates can exist and be maintained separately in the same person is an inconceivable proposition. It is quite as much of an impossibility, legally considered, as it is physically. These three sons would have the actual possession of the land; they would be entitled to receive and to retain and enjoy the rents and profits, and they and their heirs would be subjected to no change of title or possession, nor other diminution of interest than what might be produced by an application of income, or of any proceeds of sales, to the payment of legacies. The result is that they have every estate and interest in possession, in remainder and in reversion; or, in other words, the whole fee of the property. It was the design of the legislature, in the revision of the statute of Uses, to abolish technical and useless distinctions between the title and the use, and to convert the estate of a beneficiary into a legal estate, commensurate with the beneficial interest intended, whenever the trust was of a passive or formal character and the actual possession and fruits of possession were the beneficiary’s.

Under § 47 of the article upon uses and trusts, if a person by virtue of a devise shall be entitled to the actual possession of lands and the receipt of the rents and profits thereof, in law or in equity, he shall be deemed to have a legal estate of the same -quality and duration and subject to the same conditions as his beneficial interest. This article would distinctly operate upon the devise which this testator made in favor of his three sons, to vest in them from the time of his death a legal estate in fee in the lands, and the only conditions, subject to which the devisees would take, would be that the land might be resorted to for the payment of legacies, etc. As executors, they would administer upon the personalty in the payment of debts and legacies and in the establishment of the trust funds directed. If the personalty proved insufficient, they were to sell or mortgage the realty to complete that much of the testator’s plan of distribution of his •estate. Whether such sale or mortgage would be made under the power conferred by the will, or whether it would be by contribution of the devisees, is obviously quite a profitless discussion. The fact was that the real estate was charged with the payment of debts and bequests in the hands of the devisees, and they were personally bound for the payment. Brown v. Knapp, 79 N. Y., 136. It is in no wise necessary, and there are no considerations which demand that we should construe an express trust out of the residuary devise for the three sons. The doctrine established by the cases is that a trust estate will never be implied where it would render a will illegal and void. If we were to hold this devise to be an express trust, we should be doing a work which would result in overthrowing the whole testamentary scheme, for the accomplishment of no useful purpose and not demanded by any legal principle. If it is urged that the inhibition against a partition, or a division of the estate, for a period of six years, and the restriction upon the power of alienation are provisions which, for their illegality, affect the will, the answer is that as invalid limitations upon the fee ownership of the property devised they are void and may be disregarded. Henderson v. Henderson, 113 N. Y., 1, 15; 21 N. Y. State Rep., 800; Rep., 800; Harrison v. Harrison, 36 N. Y,. 543.

The present case illustrates the peculiar character of cases involving the construction of wills. Each case must be determined upon its own particular facts and features, and former precedents are rarely availing in the office of construction. The supreme importance of giving effect to the last will of the decedent requires the court to search out his intention and to validate his scheme, unless to do so would contravene the statute. The endeavor is to find a way of upholding the will, not of breaking it down, and, thus, in every case the inherent purpose, if lawful, should be effectuated through what legal channels of construction may be open. We should not make a new will for the testator and we need not strain to support his testamentary plan, if the object is unworthy, or commands our just condemnation.

The complaint was properly dismissed by the trial court, and the j udgment of the general term, affirming the judgment of dismissal, should be affirmed by us, with costs.

All concur.  