
    Schuyler Hamilton, Plaintiff, v. William Pierson Hamilton, Individually and as Executor, etc., of Alice Hamilton, Deceased, and Others, Appellants, Impleaded with Juliet P. Hamilton and Others, Defendants. Emma Gray Hamilton and Others, as Executors and Trustees under the Will of Schuyler Hamilton, Deceased, Respondents.
    First Department,
    December 10, 1909.
    Will construed — absolute gift subject to life estate and power of sale — when no trust created — partition—parties.
    Where a testator bequeathed his residuary estate to a daughter and such other children .as- should be born to him “ absolutely,” subject, however, to the right of 'his. wife to enjoy for life the income from half Of said estate, and appointed certain persons executors and guardians of the estates of his children, no trust was created although the will empowered the executors to sell the lands during the minority of any child, and further provided that the “executors and'trustees” could sell the lands upon the expiration• of said. “ trust term ” and partition and divide the estate among persons entitled thereto, with additional power “ during the said trust term ” to invest and reinvest the “"trust fund,” etc.
    •Such will .gives no title to the real or -.personal .property to; the executors as, trustees, even though the words “trust term,” “trustees” and "trust fund”, are used.. ’ .
    An absolute gift cannot be cut down or" moulded into a trust by vague and indefinite language. • .
    The power of sale given to the executors is a mere power unáccompánied by title. Hence, the executors are not entitled to be substituted as parties plaintiff in an action for partition begun by the testator during his lifetime.
    Appeal by the defendants, William Pierson Hamilton and others, from an order of thé Supreme Court, made at .the New Yorb Special Term and .entered in the office of the clerk of the county of New York on the 16th day of June, 1909, directing the substitution of the executors and trustees of the plaintiff as parties plaintiff in Ms stead.
    
      Edward R. Vollmer, for the appellants,
    
      Timothy Davenport, for the respondents,
   Houghton, J. :

This action is in partition, and during its pendency the plaintiff, Schuyler Hamilton, died leaving a last will and" testament by which he appointed his wife, Emma Gray Hamilton,-Henry Staton and Fletcher Hurst Montgomery executors. After probate of the will and the qualifying of the executors, they moved to be substituted as plaintiffs in the action in place of their deceased testator, on the ground that a trust was created by the will which vested title to his real estate in them. The will does not in express terms create a trust or devise real property to the executors, but it is insisted that a trust case be implied and that such was the intention of the testator.

After certain specific and money bequests the testator bequeathed and devised all the rest, residue and remainder of Ms estate to his daughter Alexandra and such other child or children as should be born to him “absolutely, subject however, as to an undivided onelialf of said property, both real and personal, to the right of my wife, Emma Gray Hamilton, to have, hold, use and enjoy the same and to receive and use the net rents, income and profit thereof, during the term of her natural life, for which said term I hereby give, devise and bequeath the said undivided one-half of said property both real and personal, to her as life tenant thereof.” Ho other children were born and the will operated only in favor of the daughter Alexandra, who is an infant. The testator empowered Ms executors to sell or mortgage his real estate during the minority of any child, and also made the further provision which reads as follows: “ I authorize and empower my said executors and trustees, or such of them as shall qualify, in their discretion, to sell my real estate of which I may die seized, and I also authorize them, upon the expiration of the said trust term, to partition ■ and divide my estate among the persons who shall then be entitled thereto. And I further authorize and empower my said executors and trustees, during the said trust term, in their discretion, to invest and reinvest the trust fund in addition to investments authorized by law in improved real estate and the bonds or stocks of any corporation provided said bonds.or stocks are listed upon the Hew York Stock Exchange and in the case of stocks, that they shall have paid dividends of not less than five per cent per annum for a period of at least five successive years immediately prior to the time of purchase.” Then follows' the clause nominating éxecntors, which .reads: “I nominate, constitute and appoint my wife, the said Emma Gray Hamilton, Henry Staton and Fletcher Hurst Montgomery as executors of this will and as guardians of the estates of my daughter Alexandra, and of any child or children which I may have by my said wife, during their respective minorities * * *. I authorize and empower my executors and trustees and guardians of the estate of my said child or children, in their discretion, to invest any moneys which may come into their possession pursuant to this will, in either of the aforesaid capacities, in the manner described in the fifth paragraph of this will” (above'quoted). The will further made provision for guardian of the "person as distinguished from the estate, of any of his infant children.

It seems to us that no title to real or personal property was devised or bequeathed to the executors tó hold in trust for any of the beneficiaries named in the will, and hence that no trust was created.

The testator’s interest in the/real property for the partition of which he brought action in . his lifetime, formed a part of the residue of his estate. All such residue was given absolutely to his ■ daughter Alexandra and such other' children as may have been born to him subject, however, to a life interest in one-half thereof in favor of his wife. Ho other ■ children were born and, therefore, Alexandra took all the residue subject to this interest of her mother. 'While the words “trust term,” “trustees” and “trust fund ” are employed, the language used by the testator is not. sufficient to vest title in his executors and thereby create a trust, nor were the duties imposed upon liis executors of such a character as that a trust can be implied. The executors are given a clear power to convey, but that is only a power unaccompanied by title. An absolute gift cannot be cut down and moulded into a trust by vague and indefinite language. The executors are nowhere required to pay . the income of such funds as they may invest over to the beneficiaries. Yery likely this might be implied if the other language of the will was sufficient to create a trust in them. There is .no specific direction to hold in trust the one-half given to the wife for life, and the implication of a trust in favor of the daughter is negatived by the fact that the executors are made testamentary guardians, and as such have an office to perform with respect to investing her prop-. erty during her minority. While the courts, if they can legally, should be and are guided by the-intentions of the testator in construing the provisions of a will they do not strain after a trust, or strive to cut down an absolute gift.

Our conclusion is that the executors as such had no such title as entitled them to be substituted as plaintiffs in the partition action in place of their deceased testator.

It follows, therefore, that the order must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, McLaughlin, Clarke and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  