Bartlett, J.
We are called upon to construe the will of Joseph Warren Tompkins, deceased, at one time a well-known lawyer in Westchester county.
The testator left him surviving a widow and two children, a son, Jotham S. Tompkins, and a daughter, Marion W. Tompkins.
The testator died in 1874, the widow in 1885., and the daughter in 1889 unmarried and without issue. The son, Jotham, still survives, a widower without issue, aged seventy-three years.
The daughter, Marion, left a will by which she devised and bequeathed to one Emil B. Morel any interest she had in the estate of her father.
Morel died subsequently, leaving all his property to Stephanie Morel, his wife, who is a party to this action as executrix of her husband’s will, and claims to represent the rights of Marion.
The principal point in this case is the construction to be given the sixth clause of the will, which reads in part as follows:
“Sixth.
My house and lot in the city of ¡New York, known as ¡No. 15 Wall street, I give and devise to my said executors with everything appertaining thereto, with power to take possession of, occupy, rent out and keep in repair and receive the rents, issues and profits thereof as if they were owners thereof, during the lives of my wife, Sarah Walton, and my son, Jotham, but upon the express trusts and condition that during the said lives or that of the longest liver of them my said executors, as often as received, pay and distribute in equal parts the net rents of said house and lot to my said wife, Sarah Walton, my daughter, Marion, and my son, Jotham, or the lawful issue or descendants of my said son or my said daughter,
if either should die before my said wife, such descendant receiving the share of their parent; and at the decease of my said wife and son, Jotham, to deliver up to my said two children or their descendants the said house and lot which is then to belong to them in fee.”
Then follows an authorization to sell the premises No. 15 Wall street, with the permission of the court, and a direction to deal with the proceeds substantially as provided for the real estate and its rents and profits.
This property was sold as authorized.
It is the contention of counsel for executor that this clause of the will creates a valid express trust, whereby the executor took by implication, as well as by direct devise, the entire estate during the lives of the widow and Jotham, both in law and equity, subject only to the execution of the trust.
Further, that because of the interposition of the trust estate no portion of the estate vested in the children of the testator, or could vest in them until the termination of the trust estate, that is, until the death of Jotham, the longest liver of the two selected lives; that the death of the daughter Marion has defeated her estate, and that Jotliam’s estate must necessarily terminate with the trust, because his life is the ultimate one selected upon which its duration depends; that the word “ descendants,” used by the testator in the will, is synonymous with “ issue of the body,” and does not include collateral relatives, hence, neither Marion nor Jotham could take from the other.
In the proceedings in Surrogate’s Court, instituted to compel David Verplanck as executor and trustee to pay over to petitioner, Stephanie Morel, one-half of the income of certain trust funds created by the will, it is stated in the opinion that Marion took a vested alienable interest in the real estate devised by the sixth clause of the will, subject to the trust therein created; that the rents mentioned in the sixth clause, to which Marion would have been entitled if living, are undisposed of by the will, and they, therefore, belong, under the -Bevised Statutes (1 R. S. 726, § 40), to the person presumptively enti
tied to the next eventual estate, and the petitioner, Stephanie Morel, is such person ; that as to the residue of the real estate disposed of by the eighth clause of the will testator died intestate, and, this being so, it vested in Jotham and Marion immediately upon their father’s death, subject to the execution of the trust, Marion’s interest passing under her will.
The Special Term held that the trustees were vested with the entire legal title of the
corpus
of the estate until the death of Jotham; that no portion of the principal ever vested in Marion or passed under her will; that the entire income since Marion’s death belonged to Jotham ; that no portion of the principal ever vested or can vest in Jotham, and, at his death, the
corpus
of the estate will vest in the persons, if any, who will then answer the description of his descendants.
The Appellate Division affirmed the decree of the Surrogate’s Court and reversed that of the Special Term.
We agree with the learned Appellate Division that the will created a valid trust and that, as to the income, the beneficiaries take as tenants in common and not as joint tenants.
As to the remainders, on the termination of the trust, the opinion of the Appellate Division, after dealing with the difficulties of treating them as contingent, goes on to state:
“
But, if the remainders were to be vested subject only to be divested in favor of descendants, in case the devisee should leave descendants, then the testamentary direction is wholly reasonable and natural. We are of opinion that the latter construction must, therefore, prevail.” The opinion then states that it would be unwise to decide what effect possible issue of Jotham would have on the vested estates.
We are of opinion that a fundamental error has entered into the construction of this will as to the effect to be given the words of gift in the sixth clause, to the son or daughter or their
“
lawful descendants.”
While these words were treated by the Appellate Division as a gift by substitution in case of the death of the first legatee or devisee, they were held to refer to a death during the-continuation of the trust.
We think these words refer to a death in the lifetime of the testator, and such a construction removes many of the difficulties in carrying out the obvious intention of the testator.
At the testator’s death the remainders vested in Marion and Jotham absolutely, subject to the execution of the trust.
(Livingston
v. Greene, 52 N. Y. 119;
Embury
v.
Sheldon,
68 N. Y.
227; Nelson
v.
Russell,
135 N. Y. 137;
Stokes
v.
Weston,
142 N. Y. 433.)
A general devise to executors in trust vests no estate in them, except for such of the declared purposes as require that the title be vested in them.
(Everitt
v.
Everitt,
29 N. Y. 39;
Manice
v.
Manice,
43 N. Y. 303.) In the case at bar the trustees took only such an estate as was commensurate with their trust duties, and those were limited solely to lives. It is clear they never took the remainder in fee, or the residue of personalty after the end of the trust estate.
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Bartlett, J.
We are called upon to construe the will of Joseph Warren Tompkins, deceased, at one time a well-known lawyer in Westchester county.
The testator left him surviving a widow and two children, a son, Jotham S. Tompkins, and a daughter, Marion W. Tompkins.
The testator died in 1874, the widow in 1885., and the daughter in 1889 unmarried and without issue. The son, Jotham, still survives, a widower without issue, aged seventy-three years.
The daughter, Marion, left a will by which she devised and bequeathed to one Emil B. Morel any interest she had in the estate of her father.
Morel died subsequently, leaving all his property to Stephanie Morel, his wife, who is a party to this action as executrix of her husband’s will, and claims to represent the rights of Marion.
The principal point in this case is the construction to be given the sixth clause of the will, which reads in part as follows:
“Sixth.
My house and lot in the city of ¡New York, known as ¡No. 15 Wall street, I give and devise to my said executors with everything appertaining thereto, with power to take possession of, occupy, rent out and keep in repair and receive the rents, issues and profits thereof as if they were owners thereof, during the lives of my wife, Sarah Walton, and my son, Jotham, but upon the express trusts and condition that during the said lives or that of the longest liver of them my said executors, as often as received, pay and distribute in equal parts the net rents of said house and lot to my said wife, Sarah Walton, my daughter, Marion, and my son, Jotham, or the lawful issue or descendants of my said son or my said daughter,
if either should die before my said wife, such descendant receiving the share of their parent; and at the decease of my said wife and son, Jotham, to deliver up to my said two children or their descendants the said house and lot which is then to belong to them in fee.”
Then follows an authorization to sell the premises No. 15 Wall street, with the permission of the court, and a direction to deal with the proceeds substantially as provided for the real estate and its rents and profits.
This property was sold as authorized.
It is the contention of counsel for executor that this clause of the will creates a valid express trust, whereby the executor took by implication, as well as by direct devise, the entire estate during the lives of the widow and Jotham, both in law and equity, subject only to the execution of the trust.
Further, that because of the interposition of the trust estate no portion of the estate vested in the children of the testator, or could vest in them until the termination of the trust estate, that is, until the death of Jotham, the longest liver of the two selected lives; that the death of the daughter Marion has defeated her estate, and that Jotliam’s estate must necessarily terminate with the trust, because his life is the ultimate one selected upon which its duration depends; that the word “ descendants,” used by the testator in the will, is synonymous with “ issue of the body,” and does not include collateral relatives, hence, neither Marion nor Jotham could take from the other.
In the proceedings in Surrogate’s Court, instituted to compel David Verplanck as executor and trustee to pay over to petitioner, Stephanie Morel, one-half of the income of certain trust funds created by the will, it is stated in the opinion that Marion took a vested alienable interest in the real estate devised by the sixth clause of the will, subject to the trust therein created; that the rents mentioned in the sixth clause, to which Marion would have been entitled if living, are undisposed of by the will, and they, therefore, belong, under the -Bevised Statutes (1 R. S. 726, § 40), to the person presumptively enti
tied to the next eventual estate, and the petitioner, Stephanie Morel, is such person ; that as to the residue of the real estate disposed of by the eighth clause of the will testator died intestate, and, this being so, it vested in Jotham and Marion immediately upon their father’s death, subject to the execution of the trust, Marion’s interest passing under her will.
The Special Term held that the trustees were vested with the entire legal title of the
corpus
of the estate until the death of Jotham; that no portion of the principal ever vested in Marion or passed under her will; that the entire income since Marion’s death belonged to Jotham ; that no portion of the principal ever vested or can vest in Jotham, and, at his death, the
corpus
of the estate will vest in the persons, if any, who will then answer the description of his descendants.
The Appellate Division affirmed the decree of the Surrogate’s Court and reversed that of the Special Term.
We agree with the learned Appellate Division that the will created a valid trust and that, as to the income, the beneficiaries take as tenants in common and not as joint tenants.
As to the remainders, on the termination of the trust, the opinion of the Appellate Division, after dealing with the difficulties of treating them as contingent, goes on to state:
“
But, if the remainders were to be vested subject only to be divested in favor of descendants, in case the devisee should leave descendants, then the testamentary direction is wholly reasonable and natural. We are of opinion that the latter construction must, therefore, prevail.” The opinion then states that it would be unwise to decide what effect possible issue of Jotham would have on the vested estates.
We are of opinion that a fundamental error has entered into the construction of this will as to the effect to be given the words of gift in the sixth clause, to the son or daughter or their
“
lawful descendants.”
While these words were treated by the Appellate Division as a gift by substitution in case of the death of the first legatee or devisee, they were held to refer to a death during the-continuation of the trust.
We think these words refer to a death in the lifetime of the testator, and such a construction removes many of the difficulties in carrying out the obvious intention of the testator.
At the testator’s death the remainders vested in Marion and Jotham absolutely, subject to the execution of the trust.
(Livingston
v. Greene, 52 N. Y. 119;
Embury
v.
Sheldon,
68 N. Y.
227; Nelson
v.
Russell,
135 N. Y. 137;
Stokes
v.
Weston,
142 N. Y. 433.)
A general devise to executors in trust vests no estate in them, except for such of the declared purposes as require that the title be vested in them.
(Everitt
v.
Everitt,
29 N. Y. 39;
Manice
v.
Manice,
43 N. Y. 303.) In the case at bar the trustees took only such an estate as was commensurate with their trust duties, and those were limited solely to lives. It is clear they never took the remainder in fee, or the residue of personalty after the end of the trust estate. A trust limited to lives offers no greater obstacle to the present vesting of the remainder in fee or residue of personalty than does a life estate.
The trustee takes an estate in possession and such title as will enable him to execute his trust.
The learned counsel for the executor argues that, by reason of the interposition of the trust estate, no portion of the estate vested in the children of the testator until the termination of the trust; that there can be no vested estate without a present legal and existing right of alienation, which cannot be until the termination of the ¡irecedent estate.
If such were the effect of an express trust created by will, it would prove a serious obstacle to carrying out the intention of testators.
The Statute of Uses and Trusts provides that, while an express trust vests the whole estate in the trustee in law and in equity, it shall not prevent any person creating a trust from granting or devising such lands, subject to the execution of •the trust, and such grantee has a legal estate against all persons except the trustee. (1 R. S. 729, §§ 60, 61.)
Such an estate is alienable, subject to the execution of the trust.
(Briggs
v.
Davis,
21 N. Y. 576, 577;
McLean
v.
Freeman,
70 N. Y. 85.)
Starting out with a vesting of the residuary estates at testator’s death and adopting the familiar canon of construction, that effect must be given if possible to every part of the will
(Wright
v.
Denn,
10 Wheat. 239;
Dawes
v.
Swan,
4 Mass. 208), and that the testator intended to dispose of his entire estate, there is no great difficulty in 'harmonizing the various provisions of the instrument and preventing intestacy either as to principal or income.
The scheme of the will is simple, and while in some respects it might have been more clearly expressed, yet the general intention of the testator is manifest.
The fourth and fifth clauses direct the executors to sell certain real and personal property, and out of the proceeds pay the liens thereon, the debts of the testator, and to invest the residue and dispose of it in the same manner as the residue of the estate.
The eighth clause provides that all the moneys arising from the sales of real and personal property, and not in the will otherwise disposed of, are to be invested, and the income thereof paid to the widow, son and daughter during the lives of the widow and son and the survivor of them.
It thus appears that the testator, after providing for certain specific legacies, directed the sale of the balance of his estate, real and personal, except his property in the city of Eew York, and directed the investment of the residue of the proceeds and the payment of the income during the lives of his widow and son to them and his daughter.
The principal arising from the sales with the interest the testator had thus disposed of in the fourth and fifth clauses, in the same manner as the residue of his estate.
The court below, in its opinion, suggests that “ the will contains no residuary clause, and makes no further final disposition of the testator’s estate other than that prescribed in the sixth and eighth clauses.”
The sixth clause deals with the residue of the estate, as all property, real and personal, save that located in the city of Eew York, is disposed of by the other portions of the will.
■The sixth clause, as already pointed out, creates a valid trust in the proceeds of the sale of the E ew York city property, and the income is disposed of during lives, and the principal divided, on the termination of the trust, between the son and daughter.
The testator, by the fourth and fifth clauses, provides that the net proceeds of the sales under those clauses shall be disposed of “as hereinafter directed as to the residue of my estate.” It is thus clear that this principal, invested under the eighth clause, is to be divided between the son and daughter wdien the trust under the sixth clause terminates, as this investment is limited by the same lives as those upon which the trust rests.
There is no intestacy as to the principal or residue under the eighth clause.
When we read together the portions of the will
in pari materia,
we find that the testator has disposed of his entire estate.
(Allen
v.
Allen,
149 N. Y. 280-285.)
It follows that all the residuary interest Marion had in the principal of her father’s estate, at the time of her decease, passed under her will to Emil B. Morel, and by the will of the latter to his widow, Stephanie Morel.
The interest of Marion in the income of the estate, after her death, was undisposed of by her father’s will, as she took as tenant in common, and consequently her share of the income did not go to the survivors. This being the situation, her share goes by statute to the person presumptively entitled to the next eventual estate. (1 R. S. 726, § 40;
Embury
v.
Sheldon,
68 N. Y.
227; Delafield
v.
Shipman,
103 N. Y. 463.)
As already pointed out, Marion’s interest in the principal of her father’s estate passed under her will to Emil B. Morel, and from him to his executrix and devisee, Stephanie Morel.
Morel and his widow were thus successively the person entitled to the next eventual estate.
The trust will continue until the death of Jotham, the son, and during that time the income of the trust estate, including that of the principal under the eighth clause of the will, must be paid, one-half each, to Stephanie Morel, as executrix, legatee and devisee under her husband’s will, and to Jotham S. Tompkins.
At the death of Jotham the trust ends, and the
corpus
of the estate must be divided, one-half to Stephanie Morel, as executrix, legatee and devisee under her husband’s will, or to her successors, heirs, legal representatives or assigns, and the other half to the heirs, devisees, legatees, legal representatives or assigns of Jotham S. Tompkins.
Emil B. Morel was entitled under the statute to one-lialf the income of the estate from the death of Marion in 1889 until his decease in 1894.
The accounts in the Surrogate’s Court should be adjusted on this basis, as Mr. Morel, by his answers in the Supreme Court actions, made a claim to the principal and income.
Stephanie Morel, as executrix, devisee and legatee under her husband’s will, is entitled to one-half the income of the estate from and after the death of Emil B. Morel.
The judgment of the Appellate Division should be modified so as to conform to this decision, and as so modified affirmed, with costs in this court to all parties who were allowed costs in the Appellate Division, to be paid out of the principal fund of the estate.
All concur.
Judgment accordingly.