The Chancellor.
Neither the original bill, of Thomas McCosker, nor the bill in the present suit, is properly framed, to entitle the complainant to a partition of the lands in controversy, in case it should turn out that the alleged will of John McCosker the younger is valid. In both bills it is distinctly chat'ged that the will is void; and that the whole title and interest in 'he lands became vested in T. McCosker, as heir at law of his 'her, as to one half, and as the heir of his brother as to the half thereof, upon the death of the latter. The prayer for therefore, in case the pretended will shall be found is wholly inconsistent with the case made by tl the complainant was ignorant whether the alk *he defendants, was in fact valid or invalid, and wist .utain the proper relief as that fact should ultimately appear to be, he should have framed the statements in his bill, as well as the prayer for relief, so as to present the case in a double aspect. That is, if he was in a situation to entitle him to one [342]*342kind of relief, in this court, in ease the alleged will was invalid and a cloud upon his title, and to another kind of relief here, by partition, in Case the will was valid, and if the situation of the case was such that he could not ascertain the fact upon which his right to one kind of relief or the other depended except by a discovery from the defendants or by an issue of devisavit vel non to be awarded by this court, he should, instead of alleging that the will was void, have stated that he was ignorant whether it was valid or invalid; and should have showed that he was not in a situation to have that question settled by a suit at law. And he should then have prayed that the question might be settled under the direction of this court; and that he might have the relief to which he might be entitled, in the alternative. In examining the question, therefore, whether the demurrers are well taken, the court must proceed upon the supposition that it will eventually be found that the allegations in this bill, that the will was invalid, are true; and that the same was procured to be executed by fraud, or undue influence exercised over John McCosker the younger, as stated in the original bill, and as reasserted in the bill of the present complainant..
In the case of Colton v. Ross, (2 Paige's Rep. 396,) it was decided that this court had no jurisdiction, and would not entertain a suit, to set aside a will of real estate, upon the ground that it was obtained by fraud, or that the alleged testator Was incompetent to make a will, where the complainant had a perfect remedy at law. But at the time of the filing of the original bill by T. McCosker, in the case under consideration, he had no such remedy at law. For, he was not then in possession of the premises in question, or of any part thereof. Nor was he entitled to the possession during the continuance of the trust term, of five years, created by the will of his father; which term had not then expired. So that he could not have sustained an action against the tenants, to recover the rents, or an ejectment suit against any one who was wrongfully in possession.
The trust to receive the rents and profits,-and to pay the annuities to the two sons for the five years, if they should live so long, and to pay the surplus to John, was a valid trust under [343]*343the provisions of the revised statutes, and continued, notwithstanding the death of John, for the five years, or until it was terminated by the death of Thomas within the five years. For if the trust was valid, the whole legal estate was vested in the trustees, so long as any of the valid purposes for which the trust was created continued; and the cestuis que trust could take no estate in tire lands during the continuance of the trust, (1 R. S. 729, § 60,) and the interest of the cestui que trust was inalienable in the mean time. Although one of the trustees died, and the other two refused to accept the trust, the trust itself devolved upon this court, under the provisions of the revised statutes. (King v. Donnelly, 5 Paige Rep. 46.) It was a proper case, then, for the complainant in the original bill to come into this court, upon which the trust had devolved, to have a receiver appointed to collect and preserve the rents and profits, and to have the question as to the invalidity of the will determined; so that a proper decree might be made for the payment of the whole rents and profits, which might come into the hands of such receiver, to the complainant in that bill, as well as the annuity to which he was unquestionably entitled under the will of his father. The original bill, therefore, appears to have been properly filed. And if the complainant therein had not died, I think this court would have been authorized to direct an issue, to try the validity of the alleged will; and if the same had been found to be invalid, a decree might have been made, declaring its invalidity, so that it should tio longer remain a cloud upon the title. The defendant J. T. Brady being charged with fraud and collusion in obtaining that will, in favor of an infant, who could not be properly charged with the costs of the proceedings to set it aside, appears also to have been a proper, though not a necessary party to the suit. For, he might be personally charged with costs in case the complainant should succeed. His demurrer to the whole of the original bill does not, therefore, appear to have been well taken.
The questions arising under the present bill are somewhat different. At the time of filing this bill the trust term had expired by its own limitation, as well as by the accomplishment [344]*344of all the valid purposes for which that trust was created. And although the question yet remains to be litigated, as to who is entitled to the rents and profits of the premises up to the time of the death of the complainant in the original bill, which rents are still in the hands of the receiver, or of R. Martin the original agent, the present complainant is not in a situation to litigate that question in this suit. Those rents and profits are now personal property, and belong to the personal representative of the deceased complainant, and not to his heir or devisee. But if the alleged will of John McCosker the younger is invalid, as charged in the bill, the legal as well as the beneficial interest in the whole premises, subject to the unexpired term in the lease to Maas, ■ is now in the complainant; and he is entitled to the whole rents and profits, in the hands of the receiver, which have accrued since the death of Thomas McCosker, 'in May, 1844. On the other hand, if the alleged will is valid, the defendants, J. R. Brady and his sister, are each entitled to one undivided fourth of the premises, and to the rents and profits thereof since that time; for their own use and benefit. For, although an annuity of $500 was, by the will, given to the brother for life, and to be continued to the present complainant, there appears to be nothing in that will which makes any of the legacies therein mentioned a charge, even by implication, upon the real estate devised to Brady and his sister.
If the original bill had been properly filed for a partition of the lands, it would be no objection to a bill filed by the devisee, to revive and continue the proceedings, that such devisee was an infant; and was therefore incapable of commencing an original suit for the partition of lands.
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The Chancellor.
Neither the original bill, of Thomas McCosker, nor the bill in the present suit, is properly framed, to entitle the complainant to a partition of the lands in controversy, in case it should turn out that the alleged will of John McCosker the younger is valid. In both bills it is distinctly chat'ged that the will is void; and that the whole title and interest in 'he lands became vested in T. McCosker, as heir at law of his 'her, as to one half, and as the heir of his brother as to the half thereof, upon the death of the latter. The prayer for therefore, in case the pretended will shall be found is wholly inconsistent with the case made by tl the complainant was ignorant whether the alk *he defendants, was in fact valid or invalid, and wist .utain the proper relief as that fact should ultimately appear to be, he should have framed the statements in his bill, as well as the prayer for relief, so as to present the case in a double aspect. That is, if he was in a situation to entitle him to one [342]*342kind of relief, in this court, in ease the alleged will was invalid and a cloud upon his title, and to another kind of relief here, by partition, in Case the will was valid, and if the situation of the case was such that he could not ascertain the fact upon which his right to one kind of relief or the other depended except by a discovery from the defendants or by an issue of devisavit vel non to be awarded by this court, he should, instead of alleging that the will was void, have stated that he was ignorant whether it was valid or invalid; and should have showed that he was not in a situation to have that question settled by a suit at law. And he should then have prayed that the question might be settled under the direction of this court; and that he might have the relief to which he might be entitled, in the alternative. In examining the question, therefore, whether the demurrers are well taken, the court must proceed upon the supposition that it will eventually be found that the allegations in this bill, that the will was invalid, are true; and that the same was procured to be executed by fraud, or undue influence exercised over John McCosker the younger, as stated in the original bill, and as reasserted in the bill of the present complainant..
In the case of Colton v. Ross, (2 Paige's Rep. 396,) it was decided that this court had no jurisdiction, and would not entertain a suit, to set aside a will of real estate, upon the ground that it was obtained by fraud, or that the alleged testator Was incompetent to make a will, where the complainant had a perfect remedy at law. But at the time of the filing of the original bill by T. McCosker, in the case under consideration, he had no such remedy at law. For, he was not then in possession of the premises in question, or of any part thereof. Nor was he entitled to the possession during the continuance of the trust term, of five years, created by the will of his father; which term had not then expired. So that he could not have sustained an action against the tenants, to recover the rents, or an ejectment suit against any one who was wrongfully in possession.
The trust to receive the rents and profits,-and to pay the annuities to the two sons for the five years, if they should live so long, and to pay the surplus to John, was a valid trust under [343]*343the provisions of the revised statutes, and continued, notwithstanding the death of John, for the five years, or until it was terminated by the death of Thomas within the five years. For if the trust was valid, the whole legal estate was vested in the trustees, so long as any of the valid purposes for which the trust was created continued; and the cestuis que trust could take no estate in tire lands during the continuance of the trust, (1 R. S. 729, § 60,) and the interest of the cestui que trust was inalienable in the mean time. Although one of the trustees died, and the other two refused to accept the trust, the trust itself devolved upon this court, under the provisions of the revised statutes. (King v. Donnelly, 5 Paige Rep. 46.) It was a proper case, then, for the complainant in the original bill to come into this court, upon which the trust had devolved, to have a receiver appointed to collect and preserve the rents and profits, and to have the question as to the invalidity of the will determined; so that a proper decree might be made for the payment of the whole rents and profits, which might come into the hands of such receiver, to the complainant in that bill, as well as the annuity to which he was unquestionably entitled under the will of his father. The original bill, therefore, appears to have been properly filed. And if the complainant therein had not died, I think this court would have been authorized to direct an issue, to try the validity of the alleged will; and if the same had been found to be invalid, a decree might have been made, declaring its invalidity, so that it should tio longer remain a cloud upon the title. The defendant J. T. Brady being charged with fraud and collusion in obtaining that will, in favor of an infant, who could not be properly charged with the costs of the proceedings to set it aside, appears also to have been a proper, though not a necessary party to the suit. For, he might be personally charged with costs in case the complainant should succeed. His demurrer to the whole of the original bill does not, therefore, appear to have been well taken.
The questions arising under the present bill are somewhat different. At the time of filing this bill the trust term had expired by its own limitation, as well as by the accomplishment [344]*344of all the valid purposes for which that trust was created. And although the question yet remains to be litigated, as to who is entitled to the rents and profits of the premises up to the time of the death of the complainant in the original bill, which rents are still in the hands of the receiver, or of R. Martin the original agent, the present complainant is not in a situation to litigate that question in this suit. Those rents and profits are now personal property, and belong to the personal representative of the deceased complainant, and not to his heir or devisee. But if the alleged will of John McCosker the younger is invalid, as charged in the bill, the legal as well as the beneficial interest in the whole premises, subject to the unexpired term in the lease to Maas, ■ is now in the complainant; and he is entitled to the whole rents and profits, in the hands of the receiver, which have accrued since the death of Thomas McCosker, 'in May, 1844. On the other hand, if the alleged will is valid, the defendants, J. R. Brady and his sister, are each entitled to one undivided fourth of the premises, and to the rents and profits thereof since that time; for their own use and benefit. For, although an annuity of $500 was, by the will, given to the brother for life, and to be continued to the present complainant, there appears to be nothing in that will which makes any of the legacies therein mentioned a charge, even by implication, upon the real estate devised to Brady and his sister.
If the original bill had been properly filed for a partition of the lands, it would be no objection to a bill filed by the devisee, to revive and continue the proceedings, that such devisee was an infant; and was therefore incapable of commencing an original suit for the partition of lands. For such a bill, filed by the devisee, although it is so far an original bill that the validity of the devise may be contested thereon, is in reality a bill to revive and continue, the proceedings in the original suit. Under the 23d rule of this court, if the defendant in an original bill in the nature of a bill of revivor, or in an original bill in the nature of a bill of revivor and supplement, does not deny the validity of the devise upon which the right of the new complainant to revive and continue the original suit and to have the benefit [345]*345of the proceedings therein, rests, such suit may be revived upon motion; without waiting to bring the new suit to hearing upon such new matter. And when the right of the devisee, to revive and continue the proceedings in the original suit, as the proper representative of the former complainant in such suit, is-admitted, or has been established by a decree founded upon the new matter, the new complainant is entitled to the benefit of those proceedings, so far as his interest as devisee is concerned, to the same extent as he would have been if he had been in a situation to continue those proceedings by a simple bill of revivor. (Mitf. PI. 70. White on Rev. § Sup. 127.)
When the original bill, in the present case, was filed by Thomas McCosker, the arrears of the annuity for $200, given to him for life by the will of his father, remained unpaid from the time of his brother’s death. Those arrears, as well as the part of the annuity which became payable afterwards, belong, as ‘before stated, to the personal representatives of the original complainant ; and not to the present complainant, as the devisee of the real estate. The latter, therefore, has the right to revive and continue the proceedings so far only as concerns, the real estate, and the rents and profits thereof which have accrued since the death of the original complainant; and to obtain such relief as he may be entitled to in his character of devisee merely. If the suit, therefore, is to be further prosecuted in reference to the settlement of the right to the rents and profits which had accrued! previous to the abatement, it must be revived by, or in the name of, the executor or administrator of Thomas McCosker. (Hoffman v. Treadwell, 6 Paige’s Rep. 308. White on Rev. & Sup. 81.) If the original bill, however, was properly filed, for the purpose of having the question as to the invalidity of the pretended will of John McCosker the younger, settled under the direction of this court, there is nothing to deprive the devisee of. the right to continue the suit for that purpose; although the existence of the trust term is now removed, and this complainant would probably have the right to file a new original bill for. relief. For, considering the situation of the property, I do not see how he can institute any proceedings, at law, by which the [346]*346invalidity of the pretended will can be established, so as to give him all his rights. The abatement of the suit did not discharge the- receiver who had been previously appointed. (3 Dan. Ch. Pr. 225. 1 Hogan’s Rep. 174.) No person, therefore, was in possession, against whom the present complainant could have brought a suit at law to try the legal title to the lands. Nor could any suit at law have been brought in which he could have recovered the rents, which had accrued subsequent to the death of the original complainant, either from the receiver himself, or from the tenants who had been directed to attorn to such receiver and pay their rents to him.
The form of the present bill appears to be right, with the single exception that it does not, in terms, pray that the original suit may be revived.' (See White on Rev. & Sup. 129, 130.) But the frame of the prayer is such as clearly to ihdicate that the bill was intended to be filed as an original bill in the nature of a bill of revivor. For the complainant distinctly prays that he may have the benefit and advantage of the proceedings in the original suit; and the bill also contains a general prayer, for such other or different relief as the complainant may be en titled to, upon the casé made by his bill. This mere technical defect in form, therefore, which is not alluded to in either of the demurrers, cannot avail the defendants anything. The objection that the complainant prays for an account of rents accrued previous to thé abatement, if the bill does in fact contain such a prayer, formed no ground for a demurrer to the whole bill. Anil as the bill contains no allegations, or statements, which will entitle the complainant to a decree for a partition in this suit, in any event, the mere prayer for a partition, in an event contemplated by such prayer only, does not render the bill multifarious. (See Many v. Beehman Iron Company, 9 Paige’s Rep. 194.)
The decision of the vice chancellor ih overruling the demurrer as to each defendant, must therefore be affirmed, with costs; to be paid by the appellants, respectively, upon their several appeals.