
    Mary Elizabeth Butler, Appellant, v. Alpheretta G. Butler, Defendant; Norman L. Coe, Respondent.
    
      Will — a devise of a testator's estate to his son subject to the use of two-thirds thereof to his two daughters, the share of each to revert to the son upon her death — no-trust is created thereby — sale of property so devised, under a judgment in a partition suit — the judgment, until set aside, is conclusive as to the purchaser's; rights — an action to set aside the judgment and deed and to recover the pi'operty must be brought by the trustee — conveyance under chapter 452 of the Laws of 1893.
    The will of a testator provided:
    ‘ ‘ Mrst. I give and bequeath to my son, Orlando Butler, and his heirs all my real and personal estate, including household furniture, subject to the provision of the use and income of two-thirds of the whole real and personal estate to my daughters, Elizabeth and Alpheretta, to each the use of one-third of the whole real and personal during her natural life, each share at her death to revert and belong to my son Orlando and his heirs absolutely. And I hereby appoint my son Orlando my sole executor of this my last will and testament.”
    After the death of the testator Orlando conveyed all his interest in the testator’s-property under the will to Elizabeth and Alpheretta, and thereafter Alpheretta, began an action to partition the premises mentioned in the will, making Elizabeth a party, which action proceeded to a judgment of partition and sale under which the premises were sold to a third person.
    In an action brought by Elizabeth to set aside the judgment entered in the partition action and to annul the deed executed thereunder and for other relief, upon the theory that Orlando took title to the whole estate as trustee, and that he could not destroy such trust, in consequence of which no estate or title to the premises passed to Elizabeth or Alpheretta under the will or to the purchaser at the partition sale, it was
    
      Meld, that the will did not, in terms, create Orlando a trustee, and that it did not appear that it was necessary for the use and enjoyment by Elizabeth and Alpheretta of the estates devised to them that any person should be given control or charge of the same; that, therefore, no trust was created;
    That, if a valid trust had been created, the present action by Elizabeth could not be maintained, in the absence of an allegation in the complaint that the trustee had, when requested, refused to bring the action;
    That, as all the parties interested in the property had been made parties to the partition action, the purchaser at' the sale obtained a good title, and that the judgment, being unreversed, was conclusive in support of its validity.
    
      Qucere, whether, assuming that, by the terms of the will, a valid trust was created in Orlando Butler, a conveyance thereof could not be made upon the authority of chapter 452 of the Laws of 1893.
    Appeal by the plaintiff, Mary Elizabeth Butler, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Putnam on the 16th day of January, 1899, upon the decision of the court rendered after a trial at 'the Putnam Special Term dismissing the plaintiff’s complaint upon the merits.
    The plaintiff is the Elizabeth referred to in the will.
    
      C. E. Sutherland, for the appellant.
    
      Joseph Alfred Greene, for the respondent.
   Hatch, J.:

It appears in the agreed statement of facts that the plaintiff was a daughter of John Butler, who died, leaving a last will and testament, in which he devised his estate, as follows:

“First. I give and bequeath to my son Orlando Butler and his heirs, all my real and personal estate, including household furniture, subject to the provision of the use and income of two-thirds of the whole real and personal estate to my daughters Elizabeth and Alpheretta, to each the use of one-third of the whole real and personal during her natural life, each share at her death to revert and belong to my son Orlando and his heirs absolutely. And I hereby appoint my son Orlando my sole executor of this my last will and testament.”

After the death of the testator, Orlando conveyed by deed all his right, title and interest in and to the property which he took by virtue of the provisions of the will, to the plaintiff and her sister, and they executed to him a release of all liability on account of the estate of his father. The plaintiff and her sister thereby became the legal owners of the entire estate. Subsequently, and on the 6th' day of February, 1897, Alpheretta G. Butler, one of the devisees under the will and one of the grantees in the conveyance of Orlando Butler, began an action for the partition of the premises mentioned in the will, in which she made as parties defendant Mary Elizabeth Butler, her sister and a devisee under the will, and Wright Perry, a mortgagee of the premises. That action proceeded to judgment; and it appearing that the' premises could not be profitably divided, a sale of the same was ordered, and upon such sale the defendant Norman L. Coe became the purchaser. He paid the purchase price and entered into possession of the premises. Subsequently this action was brought in which the relief demanded was that the judgment in the said action of partition be set aside; that the deed of conveyance to the defendant Coe be annulled; that a trustee be appointed of the estate of the deceased ; that an accounting be had between the parties hereto of the rents, issues and profits of said land, and that the plaintiff be put in possession of the same pursuant to the terms of the will of the testator.

The theory of the action is that Orlando Butler took title to the whole estate as trustee, and that, as such, he could not destroy the valid trust created thereby; in consequence of which no estate or .title to the premises has passed either to the devisees mentioned in the will or to the purchaser of the property in the action of partition.

Assuming that the terms of the will created a valid trust in Orlando Butler, it is by no means certain that, since the enactment of chapter 452 of the Laws of 1893, amending section 63, article 2, title 2, chapter 1, part 2 of the Revised Statutes, such conveyance is not authorized. (Snedeker v. Congdon, 41 App. Div. 433.) It is not necessary, however, to decide such question in this connection. It is quite clear that the will did not create Orlando Butler a trustee of the estate, and vest him with title thereto in that capacity. There are no words in the will creating such estate. No direction is given that he, or any other person, shall collect or receive and pay over the rents and income of the estate to the other devisees named in the will. The bequest is to each daughter of the use of one-third of the property during her natural life, and it does not appear that it was at all necessazy, for the use and enjoyznent of such estate, that any pez’son shozild be given control or chaz-ge of the sazne in order that the devisees might z-eceive the benefits therefrom.

The office of a trustee is to take legal title, to receive the rents and profits and pay them over to the cesíui que trust; and while it is true that a trzist may be created by implication, where there are no words declaz-ing it, yet such a result is worked only whez-e it is necessazy to caz-zy out the sclzezzze of the will. Such is the case of Woodward v. James (115 N. Y. 346), relied upon by the appellant. The difference between the two cases is readily apparent. Izz the case cited a trust was necessarily implied in order to carry out the provisions of the will, while, in the case befoz-e zzs, no such provision is necessazy to give full force to evez-y provision of the will, and protect each devisee therein. As there az-e zip words creating a trust, so tlzez-e is zip condition requiring that one be implied.

If, however, a valid trust had been created by the terms of the will, this action could not be maintained. If such a trust existed the legal title would be vested in the trustee; and in order to maintain the action it should have been brought in his name, or, if upon request he refused, the action might be maintained in the name of a party in interest, making the trustee a party defendant. (Anderson v. Daley, 38 App. Div. 505.) But in order to maintain such action the complaint must aver the fact that, upon request to bz-ing the action, the trustee had i-efused. (Flynn v. Brooklyn City R. R. Co., 158 N. Y. 493; Prentiss v. Bowden, 145 id. 342.) No averment is found in this coznplaint of any demand znade upon the trustee to bz-ing the actiozz, or of refusal upon his part so to do. Ozi the contraz-y the lltli allegation of the coznplaint is that no trzistee of the property has been appointed by any court of this State, nor has any application ever been znade for the appointment of such a trustee to any court of the State. This is an essential part of the plaintiff’s cause of action, as she is seeking to enforce a legal title or interest in this estate, when in fact she has no legal title thereto. Undoubtedly she might apply to the trustee, if such existed, and: upon his refusal, aver such facts, making all the parties in interest parties thereto, or apply to the Supreme Court for the appointment of a trustee for such purpose. Hot having done so, she has no standing to maintain this action.

But if it were otherwise it would not change the result. There was no prohibition resting upon Orlando Butler which prevented his making a valid conveyance of his whole estate in the property which was devised to him by the terms of the will. When he executed the deed, the legal title as well as the equitable interest became vested in the plaintiff and her sister. Under such circumstances partition of the property was sought, and all the parties in interest were made parties to that action. This resulted in judgment, and under such judgment the defendant Coe obtained good title by his purchase. This judgment stands unreversed, and may be, as it has been, invoked by the defendant Coe for the protection of his title, and as such it is conclusive. (Park Hill Co. v. Herriot, 41 App. Div. 324; Jordan v. Van Epps, 85 N. Y. 427.)

In no view of this case is the plaintiff entitled to maintain the action.

The judgment should be affirmed.

All concurred.

Judgment affirmed, with costs.  