also construed the testator's will, which, in substance, is as follows: After he declared the instrument executed by him to be his last will and testament, the testator designated three persons, whom he denominated "trustees," to carry it into effect. He then directed: (1) That they first pay out of his personal estate all expenses pertaining to his last illness and funeral expenses; (2) that they pay his wife, during life, out of the personal estate of which he might die possessed, or which might accrue from interest, rents, profits, sales, or any other source, such sums at such periods as she might need or desire for her own use; (3) that they should, as soon after his death as might in their judgment seem fitting, dispose of his Fifth avenue property at public sale, and deposit the cash proceeds with the Manhattan Bank Company to their joint credit, to be used as thereafter and theretofore provided; (4) that they pay his brother $75,000 out of the proceeds of the sale of the Fifth avenue real estate, or any other moneys on hand, such payment to be made as soon as his trustees should determine the condition of the trust fund would permit; (5) that they pay Antonio Casello $1,000. Then follows the sixth paragraph: "Sixth. After the death of my beloved wife, Harriet N. Trask, I hereby direct that my said trustees shall in their discretion, within a period of five years after her death, sell and convert all my remaining estate, real, personal, and mixed, into cash, and shall deposit one-half of the net proceeds of the same in a trust company, to be by them selected, at the best rate of interest obtainable, to be held as a trust fund by said trust company, the principal sum not to be withdrawn by either of the beneficiaries of this trust. The fund is to be the property of my two granddaughters, Sadie Trask Sturges and Adele Sturges, in equal proportions, who may by will devise and bequeath the same, or, failing to make will, it shall go to their heirs at law. Said trust company shall pay the interest on this trust fund so deposited quarterly in equal proportions to my said granddaughters, Sadie Trask Sturges and Adele Sturges. The other half of my estate so converted as specified in this article shall be paid to my daughter Sarah S. S. Sturges, for her own separate use and benefit." By the seventh and last clause he directed that his said trustees should not be required to give bonds, and, in case either or both trustees designated die or fail to act during the existence of the trust, the surrogate of New York should designate a trustee or trustees to fill the vacancy and carry out his will in the spirit in which it was made.

The trial court, in effect, held that the will was valid as a will of real and personal property: that the provisions contained in the third paragraph directing a sale of the real property therein mentioned worked an equitable conversion of it into personal prop

erty from and after the death of the testator; that such directions constituted a peremptory power of sale, which was required to be made at public auction; and that the interests of Sarah S. S. Sturges in that property were subject to the power contained therein. It was also held that the directions contained in the sixth paragraph in respect to the remaining real estate worked an equitable conversion of it into personal property from and after the death of the testator's widow; that they constituted a peremptory power of sale, and that the interests of said defendant Sarah S. S. Sturges in such real estate were subject in all respects to such power of sale. It was likewise held that two valid express trusts were created by the sixth paragraph, one for the benefit of each of the two grandchildren named, and that said trusts vested in interest immediately upon the death of the widow; that the executors had authority to nominate a trust company to execute such trusts, and that, when selected and it has accepted the trust, it would be clothed with all the powers of a trustee of an active express trust in respect thereto; and that the selection of such trust company might be made at any time, and need not be deferred until the real and personal estate shall be converted into cash. It further held that the defendants Sarah T. Sturges and Adele S. Dodd had no absolute power of disposition in respect to any of the real estate of which the testator died seised, and that none of the defendants possessed a right to elect to take the real property of the testator, or any part thereof, freed from such powers of sale.

The question first presented is whether the provisions for the sale of the Fifth avenue property contained in the third paragraph of the testator's will survived the death of his widow. It is obvious, and seems to be practically admitted, that her death effected a material change in the testator's estate, and as to the operation and effect of the will, and that thereupon the property belonging to the estate was to be controlled and disposed of under the provisions of the sixth paragraph, except as to the manner in which the Fifth avenue property should be sold. The appellants, however, contend that after her death the manner in which the property was to be sold, as well as the disposition of its proceeds, was controlled by the sixth provision, and not by the third. By the sixth paragraph the testator directed his executors in their discretion, within the period of five years after the death of his widow, to sell and convert all his remaining estate, real, personal, and mixed, into cash, and then directed what disposition should be made of the net proceeds. We are of the opinion that the provision in the sixth clause, requiring the sale and conversion of "all my remaining estate, real, personal, and mixed," was intended to include such of the Fifth avenue property as was unsold, and, upon

the death of the widow, that the provisions in the third clause for its sale were superseded by the provisions in the sixth. It is quite obvious that the purpose of the sale provided for by the third paragraph was to enable the executors to provide a fund from which to supply the necessities or desires of the widow, and to pay the legacy given to the testator's brother. That such was its purpose seems to be practically admitted in the complaint, and that the personal property proved sufficient for both purposes, and that both had been accomplished, is also alleged therein. Therefore, a sale for that purpose became unnecessary, and, consequently, the power was extinguished. Sweeney v. Warren, 127 N. Y. 426, 431, 28 N. E. 413, 24 Am. St. Rep. 468. In every case where such a power of sale exists there is an implication that, when the purpose for which the conversion was directed has failed or been accomplished, the power should not be exercised. Where a conversion takes place, it is because the purpose of the will requires it. Fisher v. Banta, 66 N. Y. 468, 476. We think that, upon the death of the widow without a sale of the property mentioned in the third paragraph, there being no necessity therefor, it fell into the residue with the other unsold property of the testator, and if now sold by the executors it must be under the provisions of the sixth paragraph, and hence the Fifth avenue property is not required to be sold at auction.

The appellants also contend: (1) That no valid trust is created by the sixth paragraph, but that the legal title to the testator's property vested absolutely, one-half in his daughter and one-fourth in each of his two grandchildren; (2) that this title is subject to the power of sale vested in the executors by that paragraph, and that the real property must be regarded as equitably converted into personalty; and (3) that the beneficiaries, being all of full age, can waive the exercise of the power of sale and elect to take the property as it now is. There is no dispute as to onehalf of the residuary estate disposed of by that paragraph, it being conceded that upon the death of the widow it vested in the testator's daughter, subject only to the power of sale. This leads to the inquiry whether a valid trust was created as to the other one-half, which was intended for the benefit of the two granddaughters. If the provis- | ions of the will are sufficient to disclose a plain intention to create a trust in their favor, then a trust must be held to have been intended. But that intent must plainly appear, either from the language employed or by necessary and undoubted implication. That this will was inartificially and unskillfully written, leaving the intent and meaning of the testator obscure and uncertain, is manifest. Still, unless it is so vague and indefinite as to render its purpose and meaning incomprehensible, it is the duty of this court to interpret it in accordance with the intent

of the testator, so far as it can be ascertained. If any express trust was constituted it was by the sixth paragraph. That the testator intended to give to each of his granddaughters one-fourth of the residue of his estate absolutely, or in trust, there can be no doubt. In determining whether a trust was intended, the fact that the will was not prepared by a lawyer, or by a person familiar with the technical terms usually employed in such instruments, or with the requisites of a valid trust, is to be borne in mind, and the fact must be taken into consideration that the scrivener had no accurate knowledge as to the meaning of the words "trust," "trustee,” or "trust fund," as is evident from a consideration of the whole instrument. It is clear from a reading of this will that the word "trustees" was not used or intended to be employed in its technical and general sense, as all the duties they were to perform were of an executorial character. That such was the nature of the trust reposed in them seems to be practically admitted, as they were appointed executors by the surrogate's court, and in that capacity brought this action. Again, an examination of the fourth and seventh paragraphs discloses that the words "trust" and "trust fund" were used with little conception of their accurate or technical meaning.

By the sixth paragraph the testator first provides for the conversion of all his property into cash. He then directs that one-half of it shall be deposited with a trust company, to be selected by his executors, at the best rate of interest obtainable, to be held as a trust fund by the trust company, the principal not to be withdrawn by either of the beneficiaries. Then follows this sentence: "The fund is to be the property of my two granddaughters, Sadie Trask Sturges and Adele Sturges, in equal proportions, who may by will devise and bequeath the same, or, failing to make will, it shall go to their heirs at law." Here the sentence ends, and in the following sentence he declares that the trust company shall pay the interest on the fund so deposited quarterly, in equal proportions, to his two granddaughters. The provision that the fund was to be their property is entirely inconsistent with the theory of an intended trust. That sentence clearly indicates a purpose to give to his granddaughters onehalf of his residuary estate in equal proportions. Hence, the question arises whether the other provisions of the will are such as to justify us in holding that that provision is so modified or limited as to disclose a purpose to create a trust and to give them a life estate only. Where, in a will, there is a plain gift, it will not be cut down or limited by another clause of doubtful meaning. Campbell v. Beaumont, 91 N. Y. 464; Van Horne v. Campbell, 100 N. Y. 287, 3 N. E. 316, 771, 53 Am. Rep. 166.

It is contended that the provisions imme diately following the words which import an

absolute gift, to the effect that the legatees shall have power to devise and bequeath such property, and, in default thereof, it shall go to their heirs, constitute a modification of the previous clause, or at least raise an implication that the gift was not intended to be absolute. We think no such modification or implication was intended or is justified. Those provisions, although perhaps unusual and unnecessary, are not actually inconsistent with the provision that the fund was to be the property of the granddaughters. It merely provides that they may dispose of it by will. or, in default of a will, that it shall pass to their heirs. Although, if the gift was intended to be absolute, that provision was unnecessary, still, when we consider that the will was prepared by one not learned in the law, may it not with equal propriety be inferred that, under an erroneous conception of the law, he inserted that clause, intending thereby to give them the absolute title, so that they might dispose of it by will, or, in default thereof, it would pass to their next of kin or heirs at law? Under the circumstances, we think it may quite as well be said that such was his intention as that his purpose was to reduce the gift to his granddaughters to a life estate. The clear and decisive words of absolute gift contained in that sentence are not modified, or the gift reduced to a life estate, by any such implication. Banzer v. Banzer, 156 N. Y. 429, 51 N. E. 291. Obviously, the phrase "heirs at law" was not used in its technical sense, but to indicate the persons to whom the property would descend, or between whom it would be distributed, in case of intestacy. But it is said that the money thus deposited was to be held as a trust fund by a trust company to be selected, which was to pay the interest to the granddaughters. Still, as the money was to be paid to the trust company by the executors, and was then to be the property of the granddaughters, the words "to be held as a trust fund" were not wholly inappropriate, as they were employed to describe a fund paid by one person for the benefit of others. To that extent it may be said that a trust relation was intended as between the trust company and the testator's granddaughters. The fund thus deposited with the trust company was to be the property of the granddaughters, and, so long as it remained on deposit, the company was to pay them the interest upon it quarterly. It is also true, as claimed, that a preceding clause provides that the sum so deposited is not to be withdrawn by either of them. That provision immediately precedes the sentence which contains words indicating an intent to make an absolute gift, and, if held to mean that it should never be withdrawn by them, is utterly inconsistent with it. language is that the principal is not to be withdrawn by either of the beneficiaries. May this not have been a mere suggestion, intended to apply only to the time during

The

which the fund was being accumulated by converting the property into cash? As that provision does not necessarily prevent the withdrawal of the fund by both, it may well have been the purpose of the testator to provide that neither of his granddaughters should withdraw the principal during the time of its accumulation, but that it should remain as one fund until the whole amount was deposited, and then might be withdrawn by both and otherwise invested. This is rendered more probable by the fact that one of them enjoyed his confidence, was familiar with his business, knew more about it than any one except himself, and was one of the executors as well. That the fund to be thus accumulated and deposited was to be the property of his two granddaughters he has plainly and definitely declared, and we think there is not enough in the other provisions of the will to authorize the court to disregard that plain provision and declare that a trust was intended. Moreover, if those provisions cannot be thus harmonized, then we think that the later one, making the gift absolute, should prevail.

Nor, upon examining the whole will, do we think it can be fairly and reasonably said that it was the intent of the testator that a trust company to be selected by his executors should become a trustee for the portion of his property intended for his granddaughters, and that they should have a mere life interest therein. The relation of the trust company, as described in the will, was to be that of a depositary, and the selection was to be determined only by the rate of interest that could be obtained, which is hardly a basis that a business man would adopt for the selection of a trustee of a large and valuable estate. It seems more consistent with an intent to have the money temporarily deposited during the time required for the sale of the property and its conversion into cash than with the idea of an intended permanent trust. If that was his purpose, the testator might well have suggested that the fund thus to be accumulated should not be withdrawn by either of the beneficiaries until its accumulation was complete. Such an interpretation is consistent with the intent that the fund should become the absolute property of the two granddaughters, in possession as well as in interest, and that during the time of such temporary deposit the trust company should pay the interest upon the fund deposited, at the time and in the proportions mentioned. Moreover, it is hardly conceivable that it could have been the intent of a business man, "a large and experienced operator in real estate," to provide that some unknown trust company should become a trustee of onehalf of his large estate, and have the possession and use of the trust property, paying only such interest as it should itself determine, with no regard to the amount which it should receive as income therefrom. To impute to the testator such a purpose would,

at least, impugn his business qualifications and disclose a situation which it is impossible to believe he could have contemplated. Indeed it seems almost incredible that he could have intended to place his granddaughters, whom he desired to have the benefit of onehalf of his estate, in a position where, during their lives, they were at the tender mercies of a corporation upon which none of the ordinary duties of a trustee was imposed, and which was bound to pay to them only such interest as it might determine. We concur in the statement contained in the respondents' brief that "it is unreasonable to suppose that his intention was that enormous sums of money should remain simply on deposit in a trust company at trust company rates during the lives of these two young women," and yet, if those provisions are to be construed as creating a trust, that is precisely what he did. The respondents, however, contend that it is the duty of the court to transpose some of the provisions of the sixth paragraph, so as to render it more probable that a trust was intended. While words and sentences may sometimes be transposed to carry out the obvious intention of a testator, we have no authority to transpose the provisions of this will to carry out some conjectural intention which is not expressed or clearly inferable from the language employed.

The appellants also contend that, if the sixth paragraph of the will be construed to create a trust, it would be invalid as suspending the absolute ownership of the property for a period not limited by two lives in being. Underwood v. Curtis, 127 N. Y. 523, 28 N. E. 585; Garvey v. McDevitt, 72 N. Y. 556. They also claim that intestacy would result, and the defendant Sarah S. S. Sturges would take the entire residuary estate as next of kin. If this contention be correct, and the claimed trust would be void, and thus the obvious intention of the testator to give his granddaughters one-half of his estate would be defeated, it would afford another reason why this court should not disregard the plain provision that onehalf the residuary estate should be their property, and imply a trust from the uncertain language of the other provisions of the testator's will. If, upon an examination of a will, a general scheme can be found to have been intended which is consistent with the rules of law, and hence valid, it is the duty of the court to effectuate the purpose of the testator, and where, without violence to such intention, two possible constructions may be given, one which will sustain the intended legacy and the other which will defeat it, the former will be adopted. Roe v. Vingut, 117 N. Y. 204, 212, 22 N. E. 933. As in this will there is no express provision creating a trust, one ought not to be implied or raised by construction which would be invalid at the moment of its creation. Smith v. Edwards, 88 N. Y. 92, 102; Woodward v. James,

115 N. Y. 346, 357, 22 N. E. 150; Henderson v. Henderson, 113 N. Y. 1, 11, 20 N. E. 814; Bliven v. Seymour, 88 N. Y. 469, 477.

We do not, however, deem it necessary to pass upon the question of the invalidity of such a trust, or to determine the effect of its validity, for, independently of that consideration, we find in the language of the will no sufficient provision to establish an intention to create a trust, or which would justify us in holding that such an intent is to be necessarily implied. We think the intent of the testator, as disclosed by his will, was to give absolutely to each of his granddaughters onefourth of his residuary estate, and that he had no intent to give them merely a life estate or to create a trust for their benefit. Although the will of the testator is somewhat uncertain and obscure, yet, as it is manifest that the scheme of his will was to provide for his wife, to give certain legacies mentioned, and then to divide the residue of his property between his daughter and two granddaughters, it is the duty of this court to carry that purpose into effect. It follows that upon the death of the testator's widow, the legal title to all his remaining property vested, one-half in his daughter and the other one-half in his two granddaughters, subject only to the power of sale conferred upon his executors, which operated as a conversion of his real estate into personalty.

This leaves for consideration the question whether, inasmuch as the power of sale, so far as it remains unexecuted, is for the benefit of the three residuary legatees who are the only parties beneficially interested, they have a right to waive the execution of the power and take the land undisposed of in place of its proceeds. In this case there is no doubt as to the validity of the power of sale. The title to the residuary estate vested in the daughter and granddaughters of the testator, subject only to such power. That the defendants, who are all of full age and of undoubted competency, have made such election, is plainly disclosed by the record. On April 13, 1899, they served upon the plaintiffs a notice by which they signified their election and an intention to take the real estate of which the testator died seised free from any and all powers of sale given to the executors under or by virtue of the testator's will.

It seems to be well settled that where land is directed to be sold, and the proceeds distributed, the parties beneficially interested may, if competent and of full age, and the gift is not in trust, elect, before the conversion has actually taken place, to take the land, and where they have so elected, and the election has been made known, the power of sale in the executors becomes extinguished, and they cannot thereafter lawfully proceed to execute it. This doctrine is said to be founded upon the presumption that such power was given for the benefit and convenience of the devisees and legatees, and

was not intended to be imperative, so as to prevent the beneficiaries from taking his bounty, except in the precise form in which the property would exist after the conversion. Mellen v. Mellen, 139 N. Y. 210, 220, 34 N. E. 925; Hetzel v. Barber, 69 N. Y. 1; Prentice v. Janssen, 79 N. Y. 478. We think that, the defendants having elected to take the land and notified the plaintiffs of their intention, the power of sale in the executors was extinguished, and they cannot now execute it.

These considerations lead to the conclusion that the judgment appealed from should be reversed, and a new trial ordered, with costs to the appellants to abide the event, payable out of the estate.

PARKER, C. J., and BARTLETT, HAIGHT, VANN, CULLEN, and WERNER, JJ., concur.

Judgment reversed, etc.

(170 N. Y. 554)

BOUTON v. WELCH et al. (Court of Appeals of New York. April 8, 1902.)

WITNESS-COMPETENCY-TRANSACTIONS

WITH DECEDENT.

An executor sued to foreclose a mortgage given by a husband to secure the price of land purchased by him, in which the wife claimed as a defense that the mortgage was to be hers after decedent's death. Held, that the husbaud, having previously withdrawn his answer in the action, was not disqualified, under Code Civ. Proc. $ 829, as the "person from whom" the wife derived her interest or title, from testifying that at the time of the execution of the mortgage the mortgagee agreed that at his death the mortgage should become the property of the wife.

Cullen and Vann, JJ., dissenting.

Appeal from supreme court, appellate division, Third department.

Action by De Witt C. Bouton, executor of Gershom Hanford, against Alice Welch and others. From a judgment of the appellate division (69 N. Y. Supp. 407) affirming a judgment for defendant Welch, plaintiff appeals. Affirmed.

fendant Alice Welch, having been unanimously affirmed by the appellate division, is conclusive upon us, if no legal error was committed in the reception or exclusion of evidence. A number of exceptions taken to the rulings of the referee are presented to us as grounds for reversal, but the only one which we deem it necessary to discuss is whether the testimony of William Welch, the husband of the defendant Alice Welch, was competent, under section 829 of the Code of Civil Procedure. A brief statement of the facts relating to the execution of the mortgage, and of said Alice Welch's claim of title thereto, is essential to an understanding of this question. Plaintiff's testator, a childless widower of means, was the uncle of the said Alice Welch. The latter and her husband lived upon a farm known as the "Axford Farm" in the town of Danby, Tompkins county, consisting of about 30 acres, and worth about $1,000. Said testator owned a farm in the same town called the "Grant Farm" valued at about $2,000. In the fall of 1886 the house upon the Axford farm, occupied by the Welches, was destroyed by fire. At this juncture plaintiff's testator and William Welch met and entered into an agreement for an exchange of the two farms. The latter was to take the Grant farm, and the former was to receive the Axford farm and a purchase-money mortgage of $2,000 upon the Grant farm. The claim of the defendant, which was established to the satisfaction of the courts below, is that this mortgage was to be her property after said testator's death. The only testimony presented in support of this claim was that of William Welch, the husband of the successful defendant Alice Welch, and this is the testimony that is challenged as incompetent under section 829 of the Code of Civil Procedure. We think the objection is not good. The language of the statute as paraphrased to fit this case is that "a party or person interested in the event, or a person from, through or under whom such a party or interested person derives his interest or title, by assignment or otherwise, shall not be examined in his own behalf or interest, or in behalf of the

WERNER, J. This action, which was commenced in the county court of Tompkins county, was brought to foreclose a mortgage given by William Welch to Gershom Hanford, the plaintiff's testator. The defendant Alice Welch, who is the wife of said William Welch, claimed title to said mortgage. Counsel being in doubt as to the power of the county court to grant the proper relief upon the issues which would necessarily be presented by conflicting claims of title to the mortgage, the case was by stipulation removed into the supreme court. The judgment entered upon the referee's report establishing the title to said mortgage in the de

against the executor," etc. As the witness Welch had withdrawn his answer prior to the trial, he was no longer a party in any such sense as to disqualify him on that ground alone. But it is urged that he was the "person from, through or under whom" the interested party (his wife) derived her interest or title. Let us see. The subject of the controversy is a mortgage. It was the property of the plaintiff's testator. It had been held by him under an agreement that upon his death it should become the property of his niece, the defendant Alice Welch. Upon the death of the former it became the property of the latter; for the court has so found. Did she get it through her husband, William Welch, or her uncle, Gershom Han