Yank, J.
The main questions presented by this appeal spring from the sixth clause of the testator’s will, which for convenience we here repeat: “
Sixth.
To my daughter Marie Ema Seward I also give one other equal sixth part of said remaining two-thirds, the same also to be invested by my executors for her benefit in such securities as they may elect, and the interest arising therefrom to be paid to her semiannually, and in the event of the said Marie Ema dying without issue, then the proceeds of said share to be divided among her brothers and sisters share and share alike.”
The effort to discover the meaning of that sentence led to a serious difference of opinion in the courts below and has caused us also to divide in judgment. While the clause begins with a gift absolute in form, it is clear that the testator meant something less. The gifts to his sons were absolute throughout, and as to one-third of his estate, to his daughters also, but their interests in the remaining two-thirds of his property were subject to the restriction that they should have the income only during their lives. The purpose of the testator in imposing this restriction may furnish a clue to the meaning of the troublesome clause. What was it? No object is suggested by the surrounding circumstances or the context, except the desire to protect and preserve the property, so that his daughters could not spend or waste it. The testator wished them to have an income as long as they lived and, hence, some provision to keep the principal intact was necessary, so that they could neither give it to their husbands nor dispose of it in any way. A defeasible estate can be transferred, but a trust estate cannot and, hence, complete protection could be afforded only by a trust. A permanent annual income for life could be furnished, with certainty, in
no other way. A defeasible fee with a power in trust might result in the loss of all, while a trust committed to honest and efficient men, and it is conceded that the'“ trusty friends” who were nominated as executors were such, was the most effective method to make the daughters comfortable for life.
What did the testator do ? He provided that his executors should invest the share of each daughter “for her benefit in such securities as they ” might elect and pay over to her semi-annually “the interest arising therefrom.” He thus clothed his executors with the power and duty of executing an express trust, as authorized by law. He did not call them trustees, nor term their position a trust, but neither is necessary to constitute a trust, provided the powers and duties are those of a trustee. He did not expressly give them title to the property, but that passes by implication when involved in the general scheme and intent. Thus, in a recent case the gift was absolute in form to four persons, one of whom was John B. Mee, a brother of the testator, to be equally divided between them share and share alike, “ but,” continued the testator, “ 1 hereby direct that the share due my brother John B. Mee be invested by my executor for his benefit during his natural life and for the benefit of his wife and his issue after his death.” It was held that the clause quoted created a valid express trust to collect the rents and profits for the benefit of the brother during his life with an absolute remainder to his wife and children.
(Mee
v. Gordon, 187 N. Y. 400, 403.)
Other authorities might be cited to the same effect, and, it must be conceded, some which hold that provisions similar to those in question create a power in trust, but the general rule is that words sufficient to constitute an express trust authorized by statute should be given that effect, unless it would violate some statutory provision, such as the prohibition against the suspension of absolute ownership, when, if possible, they are held to create a power in trust, in order that the object of the testator may not be wholly defeated.
(Steinway
v.
Steinway,
163 N. Y. 183, 200, 201.)
The intention of a testator, when within the law, must control, and we think that Mr. Allaire intended to create an express trust for the benefit of his daughters, so as to preserve the property during their lives and give them a snug annual income therefrom.
We now reach the question as to what disposition was made of the remainder upon the death of the daughters. Here we are aided by two presumptions of law, each founded on long experience and well settled, the presumption against intestacy, and the presumption against disherison. Read in the light of these presumptions, what did the testator mean when he directed that if his daughter, Mrs. Seward, should die
“
without issue ” the remainder should be divided among her brothers and sisters, without making any express provision for the contingency if she should die leaving issue ? As he did not give the fee or the principal, for the clause in question covered both real and personal property, to his daughter, and he gave the remainder to her brothers and sisters only if she died
“
without issue,” the necessary conclusion, in view of the presumptions mentioned above and the circumstances surrounding him when he made his will, is that he intended to give the remainder to her children, if she died “ with issue.” They thus took under the will by an implication which has strong support in the adjudged cases. We cite a few, out of many that might be cited, to sustain this proposition.
(Matter of
Moore, 152 N. Y. 602, 608;
Masterson
v.
Townshend,
123 N. Y. 458, 462;
Matter of Vowers,
113 N. Y. 569, 571;
Low
v.
Harmony,
72 M. Y. 408, 414;
Prindle
v.
Beveridge,
7 Lans. 225; 58 N. Y. 592. See, also,
Whitney
v.
Whitney,
63 Hun, 59, and the cases reviewed by Judge Martin, commencing at page 78.)
Finally, it is insisted by the appellants that the plaintiff can maintain no action against the sureties upon the bond in question because it ran to her mother only and she is, herself, a stranger to it.
The origin of the bond was an order of the Supreme Court appointing a trustee “ of said Marie Ema Seward under the
last will and testament of Anthony J. Allaire, deceased.” The person so appointed was directed by the said order
“
before entering upon his duties as such trustee ” to “ give as security for the faithful performance of his duties as such trustee ” a bond in the penal sum named, with sufficient sureties. The order made no provision as to the name of the obligee. The bond recited the order and substantially followed it. The sureties covenanted that their principal should “ faithfully perform the trust reposed in him as such trustee and duly pay over, invest and account for all moneys that should be received by him according to the conditions of said will and the orders of any court having authority to give directions in the premises and observe the orders and directions of the court in relation to such trust.” We find no statute, in force when this bond was given, and no rule of the court, prescribing to whom such a bond should run.
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Yank, J.
The main questions presented by this appeal spring from the sixth clause of the testator’s will, which for convenience we here repeat: “
Sixth.
To my daughter Marie Ema Seward I also give one other equal sixth part of said remaining two-thirds, the same also to be invested by my executors for her benefit in such securities as they may elect, and the interest arising therefrom to be paid to her semiannually, and in the event of the said Marie Ema dying without issue, then the proceeds of said share to be divided among her brothers and sisters share and share alike.”
The effort to discover the meaning of that sentence led to a serious difference of opinion in the courts below and has caused us also to divide in judgment. While the clause begins with a gift absolute in form, it is clear that the testator meant something less. The gifts to his sons were absolute throughout, and as to one-third of his estate, to his daughters also, but their interests in the remaining two-thirds of his property were subject to the restriction that they should have the income only during their lives. The purpose of the testator in imposing this restriction may furnish a clue to the meaning of the troublesome clause. What was it? No object is suggested by the surrounding circumstances or the context, except the desire to protect and preserve the property, so that his daughters could not spend or waste it. The testator wished them to have an income as long as they lived and, hence, some provision to keep the principal intact was necessary, so that they could neither give it to their husbands nor dispose of it in any way. A defeasible estate can be transferred, but a trust estate cannot and, hence, complete protection could be afforded only by a trust. A permanent annual income for life could be furnished, with certainty, in
no other way. A defeasible fee with a power in trust might result in the loss of all, while a trust committed to honest and efficient men, and it is conceded that the'“ trusty friends” who were nominated as executors were such, was the most effective method to make the daughters comfortable for life.
What did the testator do ? He provided that his executors should invest the share of each daughter “for her benefit in such securities as they ” might elect and pay over to her semi-annually “the interest arising therefrom.” He thus clothed his executors with the power and duty of executing an express trust, as authorized by law. He did not call them trustees, nor term their position a trust, but neither is necessary to constitute a trust, provided the powers and duties are those of a trustee. He did not expressly give them title to the property, but that passes by implication when involved in the general scheme and intent. Thus, in a recent case the gift was absolute in form to four persons, one of whom was John B. Mee, a brother of the testator, to be equally divided between them share and share alike, “ but,” continued the testator, “ 1 hereby direct that the share due my brother John B. Mee be invested by my executor for his benefit during his natural life and for the benefit of his wife and his issue after his death.” It was held that the clause quoted created a valid express trust to collect the rents and profits for the benefit of the brother during his life with an absolute remainder to his wife and children.
(Mee
v. Gordon, 187 N. Y. 400, 403.)
Other authorities might be cited to the same effect, and, it must be conceded, some which hold that provisions similar to those in question create a power in trust, but the general rule is that words sufficient to constitute an express trust authorized by statute should be given that effect, unless it would violate some statutory provision, such as the prohibition against the suspension of absolute ownership, when, if possible, they are held to create a power in trust, in order that the object of the testator may not be wholly defeated.
(Steinway
v.
Steinway,
163 N. Y. 183, 200, 201.)
The intention of a testator, when within the law, must control, and we think that Mr. Allaire intended to create an express trust for the benefit of his daughters, so as to preserve the property during their lives and give them a snug annual income therefrom.
We now reach the question as to what disposition was made of the remainder upon the death of the daughters. Here we are aided by two presumptions of law, each founded on long experience and well settled, the presumption against intestacy, and the presumption against disherison. Read in the light of these presumptions, what did the testator mean when he directed that if his daughter, Mrs. Seward, should die
“
without issue ” the remainder should be divided among her brothers and sisters, without making any express provision for the contingency if she should die leaving issue ? As he did not give the fee or the principal, for the clause in question covered both real and personal property, to his daughter, and he gave the remainder to her brothers and sisters only if she died
“
without issue,” the necessary conclusion, in view of the presumptions mentioned above and the circumstances surrounding him when he made his will, is that he intended to give the remainder to her children, if she died “ with issue.” They thus took under the will by an implication which has strong support in the adjudged cases. We cite a few, out of many that might be cited, to sustain this proposition.
(Matter of
Moore, 152 N. Y. 602, 608;
Masterson
v.
Townshend,
123 N. Y. 458, 462;
Matter of Vowers,
113 N. Y. 569, 571;
Low
v.
Harmony,
72 M. Y. 408, 414;
Prindle
v.
Beveridge,
7 Lans. 225; 58 N. Y. 592. See, also,
Whitney
v.
Whitney,
63 Hun, 59, and the cases reviewed by Judge Martin, commencing at page 78.)
Finally, it is insisted by the appellants that the plaintiff can maintain no action against the sureties upon the bond in question because it ran to her mother only and she is, herself, a stranger to it.
The origin of the bond was an order of the Supreme Court appointing a trustee “ of said Marie Ema Seward under the
last will and testament of Anthony J. Allaire, deceased.” The person so appointed was directed by the said order
“
before entering upon his duties as such trustee ” to “ give as security for the faithful performance of his duties as such trustee ” a bond in the penal sum named, with sufficient sureties. The order made no provision as to the name of the obligee. The bond recited the order and substantially followed it. The sureties covenanted that their principal should “ faithfully perform the trust reposed in him as such trustee and duly pay over, invest and account for all moneys that should be received by him according to the conditions of said will and the orders of any court having authority to give directions in the premises and observe the orders and directions of the court in relation to such trust.” We find no statute, in force when this bond was given, and no rule of the court, prescribing to whom such a bond should run. We do not regard the name of the obligee as important, because whatever name was inserted the clear intention was to secure all persons whom the court by its order sought to protect. In fact it was for the benefit and protection of every person who had a direct, pecuniary interest in “ the faithful performance by the principal of his duties as such trustee ” under said will. It might well be that all of such persons were not in being when the bond was given, yet they would not lose the benefit of the protection provided by the court because they were not designated as obligees. All the real parties in interest frequently cannot be determined until the condition of the bond is broken and, hence, the designation of the obligee, at least in the absence of a statute or a rule of the court, must be nominal, the substance and intention being that the real obligees, whether named or not, are the persons entitled to protection against the default of the principal.
(Town of Solon
v.
Williamsburgh Sav. Bank,
114 N. Y. 122, 134;
Gerould
v.
Wilson,
81 N. Y. 573, 578;
Bernards Township
v.
Stebbins,
109 N. S. 341, 349.) The bond ran to the one who was primarily interested, but it also protected those who came after her and, had the right under the will to call on the trustee to
account. In a case quite analogous in principle; where a statute (L. 1802, ch. 110) required the bond given in behalf of a guardian to be “ executed to such infant,” but the bond involved ran to the People, Chancellor Kent held the surety liable and decreed the bond “ valid as a security to the like extent as if it had been taken by the Surrogate according to the act.”
(Wiser
v.
Blachly,
1 Johns. Ch. 601, 610; 2 id. 488, 491.)
This case was followed by those last cited. In discussing the subject the chancellor said:
“
Whether the surety is to be liolden, though the bond was taken in the name of the people instead of in the name of the infant, I have no difficulty in saying, that it is within the ordinary jurisdiction of this court to correct such a mistake, by holding the party according to his original intention, and to consider the bond as taken to the infant.” (1 Johns. Ch. 609.) Conversely, as we think, the bond in question should be considered as running to the People for the benefit of all concerned, in accordance with the obvious intention of the obligors.
The order appealed from should he affirmed and judgment absolute rendered against the appellant on the stipulation, with costs in all courts.
Haight, Werneb, Willard Bartlett and Hiscock, JJ., concur; Cullen, Ch. J., and Edward T. Bartlett, J., dissent.
Order affirmed, etc.