
    Mutual Life Insurance Company, Resp’t, v. Edwin B. Woods, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 28, 1889.)
    
    1. Equity—Tbtjst—Renunciation of.
    To" establish a renunciation of a trust, no formal deed of disclaimer is necessary ; such renunciation may be inferred from circumstances.
    
      9. Same—Fobecosube—Pabties.
    Where the rents and profits derived from real property are directed to be invested, and the income thereof to be divided, the parties for whose benefit the provision is made are not necessary parties to a foreclosure suit affecting the property devised.
    Appeal from judgment entered on report of a referee directing that the appellant specifically perform a contract for the purchase of real estate.
    
      A. P. Whitehead and J. Duer, for app’lt; J3". B. Turner and W. H. Lee, for resp’t.
   Van Brunt, P. J.

The objection which is made to the title in this action arises from the claim of a defect of parties in a foreclose suit through which the plaintiffs derived title in' that certain persons who are named as executors and trustees in the will of William H. Raynor, deceased, through whom this title was derived, and who never qualified as executors were not made parties, and also, because between the time of the commencement of the action and the entry of the judgment of foreclosure, a daughter was born to one of the testator’s daughters who is not made a party to the action, and who it is claimed had a vested remainder in the land in question.

The points arise upon a construction of the will of William H. Raynor, deceased, and, also, present the question whether the executors named in the will, who never qualified took any interest in the trust estate.

It may not be at all necessary to say a word in addition to the careful opinion which has been rendered by the referee in the consideration of the questions involved upon this appeal, because such opinion deals entirely satisfactorily with the various questions presented. In the determination of this appeal we will not go over any of the points which have been so ably discussed by the referee except by way of making a suggestion in addition thereto.

It is claimed upon the part of the appellant that by the will in question a trust was vested in the executors as individuals and not ratione officii, and that there being a pre_ sumption that the trustees have accepted the trust it is necessary to establish a formal renunciation of the trust in order that it might be certain that the executors named, and who have not qualified as such, have taken no interest-in the trust.

It has been held prior to Beekman v. Bonsor (23 N. Y., 298), that a renunciation by an executor who renounces his office as executor does not necessarily imply that he has renounced the trust declared in the will. But it was held in that case, and in the case of Burritt v. Silliman (13 N. Y., 93), that a formal deed of disclaimer was not necessary, but that a renunciation of the trust might be inferred from circumstances.

To the same effect is the case of Dunning v. Ocean Nat. Bank (61 N. Y., 497). Applying these principles to the case at bar it is established that the executors named in the will who are not parties to the foreclosure action, never qualified as such, and that they performed acts during their lives which were inconsistent with the facts of their accepting the trust created under the will. These acts were sufficient to justify the ruling of the referee that there was never any intention on their part of accepting the trust, and that they did not do so.

It is only necessary to consider further the question as to the necesity of making the granddaughter a party; and this depends upon whether she acquired any interest in the land devised to his executors by the testator as land. An examination of the terms of the will seems to show beyond all question that the conclusion of the referee was correct, and that no interest in this land as land passed to the grandchildren; that there was an equitable conversion by the terms of the will of his real estate into personalty; that the whole title was vested in Mrs. Raynor as the only qualified executor and trustee, and that the grandchildren were, therefore, not necessary parties to the foreclosure in question. "

In addition to the grounds for this conclusion named by the referee, it may be proper to call attention to one feature of that part of the will by which this trust is created which seems to prove conclusively that such conversion was intended by the testator.

The fifth paragraph of the will gives, devises and bequeaths all the rest, residue and remainder of the testator’s estate, real and personal, to his executrix and executors, thereinafter named, and the survivors in trust with power to receive the rents and profits of the same, and to sell, dispose of and convey the same at such time or times and in such manner as to them shall seem proper and best for the interest of his estate, and to invest and keep invested suck rents and profits, and the proceeds of such sale or sales in bonds of the United States, or of the city or state of New York, or in first bonds and mortgages upon good and sufficient real estate, and to apply the same and the income thereof as therein directed. He then directs as to how the income of this fund invested shall be divided with remainders over.

It is to be observed that the rents and profits of the real estate are not to be divided as rents and profits. On the' contrary they are to be invested together with the proceeds of the sales of both real and personal property, and it is the income from this fund so invested which was to be divided. Now if there was to be any division of the lands so that the grandchildren acquired a vested interest in the lands, there would have been a provision for the division of rents and income of the land. There being no such provision, it is apparent that the testator intended that his whole estate should be converted into money and invested as money, and that the income from such investment should be divided. Such being the clear intention of the testator, such conversion operated from the death of the testator, and the grandchildren took no interest in the lands, and, therefore, were not necessary parties to the suit.

For these reasons, and those of the referee in his report, we are of opinion that the title which was tendered was sufficient, and the judgment appealed from should be affirmed, with costs.

Macomber and Brady, JJ., concur.  