Macomber, J.
So much of the action as resulted in the judgment ap-
pealed from is brought in pursuance of section 1537 of the Code of Civil Procedure, which permits an heir of a person dying while holding and in possession of real property to maintain an action for the partition thereof, whether he is in or out of possession, notwithstanding an apparent devise thereof to-another by the decedent, and possession under such devise. The plaintiff claims as one of the children and heirs at law of William H. Greene. He bases his right upon an alleged invalidity of the clauses of t(le will of his-father, which attempted to devise the property in question wholly to other persons than himself. By the will of William H. Greene, which bears date the 17th day of September, 1881, after the direction of the payment of debts, the testator devised the homestead and personal property on Niagara square, in the city of Buffalo, to his wife. By clauses 3 and 4 he devises to his sister certain lands in Ohio, with remainder to the plaintiff. By the fifth clause, he gave all the residue of his estate, including the premises in question, to bis-three sons, the defendants John B. Greene, Harry B. Greene, and Samuel B. Greene, as trustees, to carry out the provisions of the will. These persons-Were also appointed executors of the will. 1-Ie directed these so-called trustees, by the provisions of the will from clause 6 to clause 13, inclusive, to pay over certain moneys to certain persons, but these clauses are not of any materiality on this appeal. The residue of the will is as follows: “Article 14. I-declare.it to be my will, and I direct that my said trustees shall take and hold my said property and estate, and the whole thereof, (except the said Ohio' tracts, and my said house and lot on Niagara square,) for the period of six years from and after my decease, the estate being chargeable with the payment of the foregoing bequests and legacies, and it being, as I now believe,with the moneyed securities on hand, and with prudent management, amply sufficient to pay said legacies in full, together with the taxes, repairs, and insurance on my real property, so that, at the expiration of said period, the residue of said real estate not herein before devised should remain unincumbered and intact. After the payment of said legacies the said property and estate-shall be managed for the joint benefit of my said three sons, John B. Greene, Harry B. Greene, and Samuel B. Greene, who shall annually render to each-other a just and full statement of the rents, issues, and profits, and all transactions relating to said property and estate. During this period of six years-said trustees, my said three sons, shall not, nor shall either of them, sell, alienate, mortgage, incumber, or dispose of, or contract to sell, alienate, or dispose of, the lands and premises now owned by me, and situated on Main,North Division, and Washington streets, or any part or parcel thereof, or any share or interest therein; but any or all of my other real estate not hereinbefore specifically devised I give my said trustees power to sell, convey, and dispose-of, on condition that the proceeds of such sale or sales, or the securities taken thereon, shall not be distributed or divided between them until the expiration of the said'period of six years, but shall be kept by them, unless it becomes necessary to use the same for the purpose of paying off the legateesafore mentioned, in which contingency they are authorized to resort to such-proceeds and securities. And I do will and enjoin that no partition or division of my estate so devised and bequeathed to my said three sons in trust as aforesaid shall be made, or attempted to be made, until the expiration of said term of six years; and that, in case either of my said three sons shall attempt so to do, or to defeat or contravene the terms.and intent and conditions of this trust, he shall forfeit all interest, right, title, or property in my estate. (15) At the expiration of said period of six years, the rest and residue of my said estate, real and personal, remaining after the payment of said legacies- [286]*286.and debts, shall belong to my said three sons, John B. Greene, Harry B. Greene, and Samuel B. Greene, share and share alike, their heirs and assigns, forever. (16) (Explanatory and qualifying clause.) In the plight of the estate as at present situated, a partition would be detrimental to my said three sons. In the present condition and aspect of affairs, the moneyed securities, together with the moneys on hand, would nearly suffice to pay off and discharge all the legacies, and leave the real estate in the hands of my said three sons unincumbered. Of course, if I live some years longer, this view of the estate may be changed, but probably not in a manner to weaken it. At any time, in case an exigency should require it, I am willing and do authorize my said three sons to mortgage the real estate in order to pay off and discharge said legacies, although I cannot now anticipate any necessity for so doing.” The testator died on the 22d day of April, 1882. He was a lawyer of long .and extensive practice, yet he has left a will the construction of which is dif: ficult and doubtful. In behalf of the plaintiff it is contended that the estate which was so devised to the three younger sons was merely in expectancy, and the possession of that postponed to a future period, thus constituting it a future estate, and was limited to commence only at the expiration of six years from the death of the testator; that during such six years the legal title to the estate was not vested in any person capable of alienating the same; .and that therefore during those years an attempt has been made by wrill t6 suspend the power of alienation of the real estate, in contravention of the statutes against perpetuities. 1 Rev. St. p. 728, § 15. Consequently, it is contended that this property, after the payment of the debts and legacies, is in law deemed undisposed of, and must descend to the heirs at law. The testator manifestly intended that the land in controversy should ultimately go to these three sons. This intention, however, cannot prevail, if he has attempted to carry the same into effect by means of an illegal trust unknown to the Revised Statutes, and the general scheme of the will is dependent thereon. The question, therefore, is whether or not the title of the three sons, to whom this property was attempted to be given, is dependent upon what it is argued by the appellant’s counsel was the purpose of the testator,—namely, •that the title of the same should remain in them during such period, not as devisees, but as trustees, thus suspending the power of alienation. The learned judge at the special term in his opinion says that certain sentences from the fifth clause, and others from the fifteenth clause, of the will indicate that it was his intention to vest the title during the period of six years in them as trustees, and thus suspend the power of alienation for that time, though from other portions of the will he arrives at a different conclusion. Was there a trust in fact created by the terms of this will for any purpose? It does not seem to us that a trust was created for the payment of legacies except by way .of mortgaging the real estate, under the last sentence of the will, though clearly enough all of the legacies are made a charge upon the real estate, including this portion of it. Hor was there any trust created for the collection and paying over of the rents and profits of this real estate. The rents and profits all belonged to these three sons.
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Macomber, J.
So much of the action as resulted in the judgment ap-
pealed from is brought in pursuance of section 1537 of the Code of Civil Procedure, which permits an heir of a person dying while holding and in possession of real property to maintain an action for the partition thereof, whether he is in or out of possession, notwithstanding an apparent devise thereof to-another by the decedent, and possession under such devise. The plaintiff claims as one of the children and heirs at law of William H. Greene. He bases his right upon an alleged invalidity of the clauses of t(le will of his-father, which attempted to devise the property in question wholly to other persons than himself. By the will of William H. Greene, which bears date the 17th day of September, 1881, after the direction of the payment of debts, the testator devised the homestead and personal property on Niagara square, in the city of Buffalo, to his wife. By clauses 3 and 4 he devises to his sister certain lands in Ohio, with remainder to the plaintiff. By the fifth clause, he gave all the residue of his estate, including the premises in question, to bis-three sons, the defendants John B. Greene, Harry B. Greene, and Samuel B. Greene, as trustees, to carry out the provisions of the will. These persons-Were also appointed executors of the will. 1-Ie directed these so-called trustees, by the provisions of the will from clause 6 to clause 13, inclusive, to pay over certain moneys to certain persons, but these clauses are not of any materiality on this appeal. The residue of the will is as follows: “Article 14. I-declare.it to be my will, and I direct that my said trustees shall take and hold my said property and estate, and the whole thereof, (except the said Ohio' tracts, and my said house and lot on Niagara square,) for the period of six years from and after my decease, the estate being chargeable with the payment of the foregoing bequests and legacies, and it being, as I now believe,with the moneyed securities on hand, and with prudent management, amply sufficient to pay said legacies in full, together with the taxes, repairs, and insurance on my real property, so that, at the expiration of said period, the residue of said real estate not herein before devised should remain unincumbered and intact. After the payment of said legacies the said property and estate-shall be managed for the joint benefit of my said three sons, John B. Greene, Harry B. Greene, and Samuel B. Greene, who shall annually render to each-other a just and full statement of the rents, issues, and profits, and all transactions relating to said property and estate. During this period of six years-said trustees, my said three sons, shall not, nor shall either of them, sell, alienate, mortgage, incumber, or dispose of, or contract to sell, alienate, or dispose of, the lands and premises now owned by me, and situated on Main,North Division, and Washington streets, or any part or parcel thereof, or any share or interest therein; but any or all of my other real estate not hereinbefore specifically devised I give my said trustees power to sell, convey, and dispose-of, on condition that the proceeds of such sale or sales, or the securities taken thereon, shall not be distributed or divided between them until the expiration of the said'period of six years, but shall be kept by them, unless it becomes necessary to use the same for the purpose of paying off the legateesafore mentioned, in which contingency they are authorized to resort to such-proceeds and securities. And I do will and enjoin that no partition or division of my estate so devised and bequeathed to my said three sons in trust as aforesaid shall be made, or attempted to be made, until the expiration of said term of six years; and that, in case either of my said three sons shall attempt so to do, or to defeat or contravene the terms.and intent and conditions of this trust, he shall forfeit all interest, right, title, or property in my estate. (15) At the expiration of said period of six years, the rest and residue of my said estate, real and personal, remaining after the payment of said legacies- [286]*286.and debts, shall belong to my said three sons, John B. Greene, Harry B. Greene, and Samuel B. Greene, share and share alike, their heirs and assigns, forever. (16) (Explanatory and qualifying clause.) In the plight of the estate as at present situated, a partition would be detrimental to my said three sons. In the present condition and aspect of affairs, the moneyed securities, together with the moneys on hand, would nearly suffice to pay off and discharge all the legacies, and leave the real estate in the hands of my said three sons unincumbered. Of course, if I live some years longer, this view of the estate may be changed, but probably not in a manner to weaken it. At any time, in case an exigency should require it, I am willing and do authorize my said three sons to mortgage the real estate in order to pay off and discharge said legacies, although I cannot now anticipate any necessity for so doing.” The testator died on the 22d day of April, 1882. He was a lawyer of long .and extensive practice, yet he has left a will the construction of which is dif: ficult and doubtful. In behalf of the plaintiff it is contended that the estate which was so devised to the three younger sons was merely in expectancy, and the possession of that postponed to a future period, thus constituting it a future estate, and was limited to commence only at the expiration of six years from the death of the testator; that during such six years the legal title to the estate was not vested in any person capable of alienating the same; .and that therefore during those years an attempt has been made by wrill t6 suspend the power of alienation of the real estate, in contravention of the statutes against perpetuities. 1 Rev. St. p. 728, § 15. Consequently, it is contended that this property, after the payment of the debts and legacies, is in law deemed undisposed of, and must descend to the heirs at law. The testator manifestly intended that the land in controversy should ultimately go to these three sons. This intention, however, cannot prevail, if he has attempted to carry the same into effect by means of an illegal trust unknown to the Revised Statutes, and the general scheme of the will is dependent thereon. The question, therefore, is whether or not the title of the three sons, to whom this property was attempted to be given, is dependent upon what it is argued by the appellant’s counsel was the purpose of the testator,—namely, •that the title of the same should remain in them during such period, not as devisees, but as trustees, thus suspending the power of alienation. The learned judge at the special term in his opinion says that certain sentences from the fifth clause, and others from the fifteenth clause, of the will indicate that it was his intention to vest the title during the period of six years in them as trustees, and thus suspend the power of alienation for that time, though from other portions of the will he arrives at a different conclusion. Was there a trust in fact created by the terms of this will for any purpose? It does not seem to us that a trust was created for the payment of legacies except by way .of mortgaging the real estate, under the last sentence of the will, though clearly enough all of the legacies are made a charge upon the real estate, including this portion of it. Hor was there any trust created for the collection and paying over of the rents and profits of this real estate. The rents and profits all belonged to these three sons. It is true that they were required to account to eacli other, by the terms of the will, for the amount thereof, which they should respectively receive, yet this is no more than a declaration of the testator of a familiar rule of law' governing tenants in common of real estate. There is undoubtedly contained in the will strong expressions of a desire that these lands should not be alienated or partitioned, or anything done with them except as they might be charged with the payment of debts; but this by no means prevents the immediate vesting of the title of the lands in the devisees. The primary purpose of the testator being apparent, which was to vest the whole of this property in these three beneficiaries, not as a mere remainder depending upon an illegal future estate, but absolutely, we can safely, without doing violence to the terms of the will, reject, as merely ad[287]*287visory only, all clauses or expressions from which it is argued that an illegal trust was created for a period of six years. Indeed, the testator himself, by imposing a penalty upon either of his sons who should attempt to partition or divide the lands, seems not to have supposed that he had suspended the power of alienation for any length of time. This case is sui generis; and, in the multitude of cases arising upon last wills, that of Rice v. Barrett, 102 N. Y. 161, 6 N. E. Rep. 898, is largely relied upon by the learned counsel for the .appellant. But in that case the so-called trustees were not given personally the rents and profits of the real estate, as has been done in this instance, but were charged with the duty of receiving the interest upon the residuary estate, and investing the same, and holding it for the benefit of certain persons •other than those named as trustees in the will; and it was there held that the trust was in contravention of the statute, inasmuch as the accumulated fund furnished the only support for the devises subsequently made, and the whole .scheme of distribution failed, and the title to the residuary real estate upon the death of the testator vested in his'heirs at law, as in the case of intestacy. In the case at bar, however, there was no trust save that given by virtue of the power to mortgage for the payment of legacies, inasmuch as the duty devolved upon the so-called trustees was to themselves only, and not to other persons. This gave them a legal estate in fee, under the Revised Statutes, (1 Rev. St. p. 727, § 47,) which is as follows: “Every person who, by virtue of any grant, assignment, or devise, now is, or hereafter shall be, entitled to the actual possession of lands, and the receipt of the rents and profits thereof, in law or in equity, shall be deemed to have a legal estate therein of the same quality and duration, and subject to the same conditions, as his beneficial interest. ” See Ring v. McCoun, 10 N. Y. 271; Downing v. Marshall, 23 N. Y. 379; Adams v. Perry, 43 N. Y. 487.
Upon the whole, we are of the opinion that it was not the intention of the testator to vest the title of the real estate in these persons as trustees, but in them as tenants in common; and that he intended that these sons should receive and enjoy the rents, issues, and profits of the property for their own use and benefit, making them, to all intents and purposes, absolute owners of the property, subject only to the general charge upon the real estate of the payment of the legacies, and the power to mortgage the same for a like purpose. The judgment should be affirmed. All concur.