
    SARAH A. ROGERS as Executrix, Etc., of PATRICK L. ROGERS, Deceased, Respondent, v. GEORGE W. ROGERS, Appellant, Impleaded with JOHN F. ROGERS and others.
    
      A trust is not void because the beneficiary is appointed a trustee.
    
    Appeal from a judgment, entered upon tbe trial of this action by the court without a jury, and also from certain orders made therein.
    The action was brought to obtain a judicial construction of the will of Patrick L. Rogers, deceased.
    The judgment sustained the trusts mentioned in the will, for the construction of which this action was brought, and the right of the beneficiary in the trust to execute the same as trustee thereof.
    The court at General Term said : “ Patrick L. Rogers died in 1864, leaving a last will, whereby he devised and bequeathed to his executors named therein all the estate of the deceased, after the payment of debts, in trust to keep the estate invested, and to collect the rents, as follows: To pay to his wife during life or during widowhood, or during the minority of the testator’s youngest child, ‘whichever event should first happen, so much of the income and profit of my estate, as may be necessary for the comfortable support of herself and my mother, and the maintenance and education of my said children, and in case the whole of such income shall be insufficient for the support of my wife and mother, and the maintenance and education of my children, or such of them as may be minors, then and in that case I authorize my executors and executrix to apply to that purpose so much of the principal sum invested as may be necessary to make up the deficiency.’ The testator left real and personal estate. There were named in the will, as executors, the testator’s wife and four other persons. The wife alone has qualified. The argument made that the trusts contained in the will are void, because the same person is trustee and beneficiary, cannot be held good. It is a general rule that the same person cannot be trustee and cestui que trust, but no valid trust should tail because of the failure of a trustee to qualify. If all of the trustees named had qualified, then it would have been proper to direct that the trustees, other than the widow, should apply to her use what was her right under the will out of the trust estate. In Bundy v. Bundy (38 N. Y., 410), in a somewhat similar case, the court appointed a now trustee for that portion of the trust fund which was to be held for a beneficiary when the beneficiary was also trustee. The Court of Appeals approved of this saying that it was competent for the court to appoint a trustee. The trust must therefore be held good, unless it is in conflict with the statutes in relation to trusts.”
    
      O. K. Corliss, for the appellant. Samuel V. Speyer, for the respondent.
   Opinion by

Barnard, P. J.

Present — BaRNaed, P. J., and DykmaN, J. j Gilbert, J., not sitting.

Judgment and order affirmed, with costs.  