
    Daniel E. Donovan, Appellant, v. James H. Van De Mark, Respondent.
    To create a valid trust, under the statute of uses and trusts (2 R. S., 728, § 55), it is not necessary that the trust should be stated in the very words of the statute; it is sufficient if a purpose within the statute is clearly embraced in the language used, for the execution of which the trustee may be clothed with the legal title.
    The will of S., by' its terms,'gave to C. all the testator’s real and personal estate, “ in trust, neverthless, for the necessary support and maintenance of” the testator’s son A., “ during his natural life,” and after the death of A., gave said estate to the lawful children of A. C. was appointed executor, and was authorized to sell certain of the real estate. In an action of ejectment by plaintiff as successor to C., as trustee, to recover possession of premises so authorized to be sold, held, that the will gave to C., directly or inferentially, power to manage the estate, to receive the rents and profits and apply them according to his judgment in the support and maintenance of A.; and that, therefore, a valid trust was created, and a legal title vested in the trustee.
    
      Verdin v. Slocum (-71 N. Y., 345), distinguished.
    
      Donovan v. Van De Mark (18 Hun, 203), reversed.
    (Argued September 15, 1879;
    decided September 23, 1879.)
    Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, affirming a judgment in favor of defendant, entered upon a decision of the court on trial, without a jury. (Deported below, 18 IIuu, 200.)
    This was an action of ejectment, brought by plaintiff as trustee under the will of Andries Schoonmaker, to recover possession of certain premises, of which said testator died seized.
    George Chambers, the trustee named in the will, declined to act and plaintiff was appointed trustee in his stead.
    The provisions of the will upon which the litigation depended are set forth in the opinion.
    
      J, JH. Van JStten, for appellant.
    The will vested the title to the estate in the trustee during -the life of Abraham. ( Wag .staff v. Lowerre, 23 Barb., 221; Willard on Beal Estate, 470-506; 2 B. S., 57; Willard on Executors, 369, 370; Jackson ex. dem. Decker v. Merrell, 6 J. B,. 185; Jackson ex. dem. Livingston v. DeLancy, 13 id., 537; Smith v. Bowen, 35 ÜT. Y., 83; Amy v. Whaley, 59 Barb., 72; Jackson ex. dem. Herrick v. Babcock, 12 J. B., 389.) As it would be impossible for the trustee to perform the acts enjoined by the will without having the title the law gives him the title by implication. (Brewster v. Striker, 2 N. Y., 19; Wagstaff v. Lawrence, 23 Barb., 221.) Where an executor is designated to execute a trust, he is not invested with a character distinct and independent of that of trustee, although he be called “ executor.” (Brewster v. Striker, 2 N. Y., 19; Stagg v. Beekman, 2 Edw. Chy., 89; 2 B. S., 94, § 66; Willard on Executors, 36-44.) The trustee by the express terms of the will as well as by implication of law having a title vested in him had the right “to receive the rents and profits ” as incident or appurtenant to that title, and such right is necessarily exclusive. (Beekman v. oBower, 23 N. Y., 314; Wood v. Wood, 5 Paige, 603; Vail v. Vail, 4 id., 317-328, etc.; Willard on Beal Estate, 203 and 89, 90; King v. Whaley, 59 Barb., 72; Broadner v. Falkner, 34 N. Y., 347; Gerard on Titles, [2d ed.], 405; Marvin v. Brewster Lron Co., 55 1ST. Y., 538; Pollock v. Crouise, 12 How., 363; Jackson ex. dem. Yates v. Hathaway, 15 J. B., 447 ; Le Boy v. Platt, 4 Paige, 77.) The words “necessary support and maintenance” as used in the will limited the application of the fund to the actual necessity of Abraham, of which the trustee was to judge. (Brown v. Harris, 25 Barb., 135; Stagg v. Beekman, 2 Edm. Ch., 89; Mason v. Jones, 2 Barb., 229; Willard’s Beal Estate, 505; Beekman v. Bouser, 23 N. Y., 314; Fisher v. Field, 10 J. B., 495; Gomez v. Tradesman Bank, 4 Sandf., 102; 10 Conn., 243; 4 Dana, 357; Vernon v. Vernon, 53 N. Y., 351; 64 id., 348-356; 2 Story Eq., § 1065; Maurice v. Maurice, 43 1ST. Y., 368; DuBois v. Bay, 35 N. Y., 162; James v. Beasley, 14 Hun, 523; Coster v. Lorillard, 14 Wen cl., 321; 64 N. Y., 347; 2 id., 307; 1 R S., 748, § 2; Paries v. Paries, 9 Paige, 109; Tucker v. Weeks, 2 Sweeney, 736; Willard on Executors, 307; James v. Bearsley, 14 Hun, 523.)
    
      J. Newton Piero, for respondent.
    The provisions of the first clause of the will did not create a valid trust, and the devise vested the legal estate in the testator’s son Abraharn. (1 R S., 727, § 45; id., 728, § 47; id., 729, § 49; Hotchkiss v. Pltinge 36 Barb., 38, 44; JRansoni v. Lamjpman, 1 Sold., 456, 462; Wright v. Douglass, 3 id., 563; Vernon v. Vernon, 53 N. Y., 351; Iliermans v. Bobinson, 64 id., 332, 340; Jarvis v. Babcock, 5 Barb., 139,144.) The second clause of the, will being a mere power of sale to the executor, vested no estate in him as a trustee. (1 E. S., 729, §§ 56, 62, 69; Maurices. Maurice, 43 N. Y., 313, 363, 364; Vernon v. Vernon, 53 id., 351, 357.)
   "Danfoeti-i, J.

The words of the will plainly indicate the intention of the testator: “I give,” he says, “devise and 0 bequeath to George Chambers all my estate, in trust nevertheless, for the necessary support and maintenance of my son Abraham during his natural life, and after his death I give and bequeath the said estate to Abraham’s children.” “ I appoint” Chambers executor of this will, “ and empower him to sell ” certain premises ; those in question.

First. The title is conferred on Chambers, but it is apparent that the testator did not intend that he should take it absolutely, and for his own benefit, for although he gives to him the land, it is in trust.

Second. Nor did he intend that the beneficiary, his son Abraham, should have the use or control of the land or its whole proceeds, for the trust declared is for his “ necessary support and maintenance,” and if the respondent's contention is right, these words of qualification must be disregarded. If the son takes the whole he may buy therewith not only “necessary meat, drinks, apparel, necessary physic, and such other necessaries,” and so receive his support and maintenance, but articles purely ornamental and therefore in no wise contributing to either, nor would he be limited to those things which were for his personal advantage, but might waste his substance among his companions, not necessarily in riotous living, although the evidence suggests its possibility, but in pleasant, and if the money was his own, not unreasonable entertainments of friends ; he might even hazard the fruits of the real estate in trade, or speculation, or games of chance, and so be deprived of that aliment, clothing and shelter, and other necessaries, which only his father intended to secure for him ; as is clearly indicated by the words, support and maintenance.” These are words of limitation; they define the purpose of the trust, and would of themselves require the determination we are about to make. But there is moreover the word “ necessary.” This emphasizes and gives increased significance to the others, modifies and narrows their application, and from the whole I think it is inferable not only that Abraham was not to take for himself, but that some person other than himself should determine the extent of his allowance. If otherwise he would be left to judge of his own necessities which would contravene the maxim absque non debet esse judex in propria causa, and the words would according to the general sense of man have no restraining force. It follows from these considerations that Chambers the trustee is to determine how much and what is “ necessary ” for the testator’s son, his support and maintenance, and that the property is vested in him in order that his determination may be made effectual, to give or to Avithhold. This can be done only by his management of the estate, his receipt of rents or profits, and his application of them according to his judgment in the support and maintenance of Abraham. All these powers are plainly given, or to be inferred. This conclusion is strengthened by those provisions of the will under AAhich Chambers is empoAvered at his discretion to bargain, sell and convey the premises. He has then a poAver to manage, and a duty to perform in respect to the estate. It would seem therefore that a trust valid under the provisions of title 2 (p. 11), chapter 1, article 2, § 55, was created, and a legal title vested in the trustee. It would not be profitable to examine or collate the criticisms of courts upon special phrases contained in instruments of this nature, for however they hold in regard to particular words or provisions, it will be found they all agree that it is not necessary the trust should be stated in the very words of the statute, but it is sufficient if a purpose within the statute is clearly embraced in the language used, for the execution of which the trustee may be clothed with the legal title. (Leggett v. Perkins, 2 N. Y., 297; Beekman v. Bonsor, 23 id., 298; Vernon v. Vernon, 53 id., 351; Heermans v. Robertson, 64 id., 332.)

Verdin v. Slocum (71 N. Y., 345), on which the respondent relies, is quite different from the case before us. In that case the trustees were to permit the beneficiary to take all the rents, etc., themselves exercising no discretion or control.

As the judgment of the court below was given upon a construction of the will different from that above rendered, it should be reversed, and a new trial granted, with costs to abide the event.

All concur.

Judgment reversed.  