
    Matter of the Probate of the Last Will and Testament of Erich A. Bleckwehl, Deceased.
    (Surrogate’s Court, Kings County,
    April, 1913.)
    Trusts-—what estate created for a period measured by two lives — Real Property Law, § 66 — estate by marriage — vesting of lands in residuary devisees with power of sale — wills.
    Where a testator devised and bequeathed a certain house with, all its contents, except as specifically bequeathed, in trust, during the lives o£ two daughters and for their use and the use of another daughter and a son while the four remained unmarried, free of any charge for occupancy except carrying charges, with direction that, in the event of any two of them consenting before or at the termination of the trust, the property be sold and the proceeds divided equally among testator’s twelve surviving children, who were named as residuary devisees, the issue of any deceased child to take their parent’s share per stirpes, the trust is passive, and a legal estate is created for a period measured by the lives of the two daughters.
    Under section 66 of the Real Property Law, each of the four devisees as tenants in common took one-fourth of the subject of the devise, which, except for the extinction of his estate by marriage or by the consent of the beneficiaries, endured during the lives of said two daughters, and upon his decease within the longer of such two lives would pass to his heirs at law.
    The provision as to marriage means that each individual share is to be curtailed only by his own marriage, and, upon that event in the life of any one of the devisees, his share will pass to the residuary devisees and not to the surviving tenants for the two lives.
    Upon the complete termination of the initial tenancy, however effected, the attempted trust as to the remainder must fail as to the estate during the two lives, and the lands would thereupon vest in the residuary devisees with power, of sale in the so-called trust deeds for the puiposes of conversion and division.
    Proceeding upon the probate of a will.
    Wátson & Kristeller, for proponent.
    Herzfeld & Sweedler (Hermon H. Shook, of counsel), for Annie Breitenbecker.
   Ketcham, S.

The will propounded is in part as follows :

Fifth. I give, devise and bequeath to Edward Bleckwehl and Walter Bleckwehl, in trust nevertheless, the house known as 393 East Third Street, in the Borough of Brooklyn, together with all the furniture and contents thereof, except as hereinbefore specifically bequeathed, to hold the same during the lives of my daughters, Mildred and Florence, and for the use and occupation of my daughters, Rebecca, Florence and. Mildred, and my son, Walter Bleckwehl, while they remain unmarried; free, however, of any charge for said occupancy, except carrying charges, but in the event that any two of the aforementioned beneficiaries shall consent thereto before the termination of said trust, or at the termination of said trust, I direct that the property be sold and the proceeds of such sale shall be divided equally among my children, Emma Matilda Desch, Eebecca Bleckwehl, Henry Bleckwehl, Edward Bleckwehl, George Bleckwehl, Albert Bleckwehl, William Bleckwehl, Lulu Haviland, Florence Bleckwehl, Walter Bleckwehl, Mildred Bleckwehl and Annie Breitenbecker; the issue of any deceased child to take their parent’s share per stirpes.”

This is followed by a residuary gift to the twelve persons named in the preceding paragraph.

In the trust for the two lives, which is attempted in the 5th paragraph, there is no expression or implication from which there can be derived any power or duty in the trustees to receive the rents, issues and profits.

The right to receive the income cannot be implied from the nature of the duties of the trustees. Even where there is an actual devise to the trustees no estate can vest in them unless they are also (that is, in addition to the devise to them of the lands) empowered to receive the rents and profits. Real Prop. Law, § 97.

Again, the statute declares that although a disposition by devise be made to any person for the use of another, no estate vests in the trustee. Real Prop. Law, § 83.

No active duty of the trustees can be spelled out from the provision that they shall “ hold ” the land. Hence, none of the express trusts recognized by statute (Real Prop. Law, § 96) results and the trust, such as it is, becomes dry and passive.

But the critic -of this will argues that because the trust is dry and passive there is no virtue left in the provision by which it was created and that the lands must descend to the heirs of the decedent. This contention assumes that a passive trust is the same thing as an "utterly void trust.

Far different from an invalid trust is a trust for the use of another. Unless there was a distinction, the law would not have labored to preserve the two terms. The passive trust, though by our statute excluded from the family of express trusts, remains one of the oldest and most respectable institutions of legal history. When found in a will it is not an unreality like an invalid trust. It is preserved and effectuated in every detail so far as to carry out all of its purposes.

The law does not reject its intention. Bather does it insist upon giving effect thereto, but only in the form of a legal estate in the proposed beneficiary instead of the equitable estate which the defeated trust had contemplated.

It is impossible that a trust in one for the use of another can be regarded as completely extinguished. ’ ’ It must doubtless be shut out from among the statutory express trusts but its intention must survive, and the law must be zealous and astute to reproduce in the form of a legal estate every element which in the case of a beneficial estate would have been enjoyed if the trust had been wholly successful.

The problem of this will is to rescue from its unfortunate language every wish of the testator which is not contrary to law. Its obvious intention was that four persons should have the use and occupation of the lands during the lives of two of their number, subject to certain incidents to be separately considered.

The attempt of the will-maker to accomplish this by a trust has failed, but there is no warrant for the contention that his effort itself has failed though his method is condemned. If, instead of the equitable estate which he meant to create, there be substituted a legal estate of the same extent and nature so far as possible, then the will is to be paraphrased as follows: I devise the house to my four children named during the lives of two of their number named, with remainder to others at the end of the two lives designated. ’ ’

It is contended that the habendum “ to hold the same during the lives, ’ ’ etc., pertains only to the trustees and must vanish from consideration as soon as the trust is found deficient. But the habendum was to hold for the period indicated and for the use and occupation of the beneficiaries. The period was designed only as a measure of the time during which the beneficiaries might use and occupy. It was wholly personal to those who might have the use of the estate.

If, then, there was created a legal estate for a period measured by two lives, it remains to ascertain the several interests of those tó whom such estate was given.

• “ Every estate granted or devised to two or more persons in their own right shall be a tenancy in common, unless expressly declared to be in joint tenancy.” Real Prop. Law, § 66.

Each of the four devisees then took one-fourth of the subject of the devise which, except for the extinction of his estate by the vicissitudes of marriage or by the consent of the beneficiaries, endured during the two lives designated and upon his decease within the longer of such two lives would pass to his heirs-at-law.

If, then, each of the beneficiaries holds Ms own share in common, the provision as to marriage must mea,n that each individual’s share is to be curtailed only by Ms own marriage, and that, upon that event in the life of any one of these devisees, his share will pass not to the surviving tenants for the two lives, but to the residuary devisees.

It is obvious that the tenancy for the two lives may be shortened by the consent provided for in the will; that upon the complete termination of the initial ten#ancy, however effected, the attempted trust as to the remainder must fail ón the grounds indicated supra as to the estate during the two lives, and that the lands will thereupon vest in the twelve persons named in the 5th paragraph, with power of sale in the so-called trustees for the purposes of conversion and division.

The construction thus indicated may he embodied in the decree.

Decreed accordingly.  