By the Court, Johnson, J.
The learned judge was right, I think, in holding at special term, as matter of law, that the plaintiffs became entitled absolutely to one half the fund of $1200, given to the executors in trust, upon the death of the widow of the testator. The defendants controvert this conclusion of law, and contend that by the failure of the widow to elect to accept the provisions made' for her, in the will, in lieu of dower, in her lifetime, she having died before accepting, and before the period when she would be deemed in law to have accepted, the whole provision failed, and the trust, and trust fund with it, and no such fund ever vested in the executors. This is insisted, upon for the purpose of sustaining the judgment in case it should be determined that the plaintiffs’ claim is not barred by the statute of limitations. It is in this view *567• • only that the examination of this question is proper upcnr-** the plaintiffs’ appeal. In that view, and for that purpose, it is proper, because if the judgment is such an one as the court, upon all the facts, ought to have rendered, it will be sustained, though placed upon untenable ground at the special term. But the defendants’ position, though sustained by an elaborate and very ingenious and plausible argument, is not maintainable. The fund was created by the testator, and given to his executors for a two fold purpose, and upon a double trust, viz: To be invested in a particular manner, and to be used and enjoyed in that form, by his widow, during her life, and at her death to be reconverted into money, and one half thereof paid over to the plaintiffs. This fund, if it ever vested in the executors as trustees, certainly vested in them for all the purposes of the trust.
It is true, as the defendants contend, that so far as the widow is concerned, this provision, with all the other provisions of the will in her favor, was provisional, and conditioned upon her acceptance of them in lieu of her dower right. It is also true, as found by the judge, as matter of fact, that the widow died within about a month after the decease of the testator, without making her election to accept the provisions of the will in her favor, and without the selection of a dwelling house, in the purchase of which the fund was to be invested by the terms of the will. But it does not follow that this state of facts operated to divest the plaintiffs of all right and title to this fund, and cast the fund back into the mass of the funds of the estate. The plaintiffs and the other society, were the ultimate beneficiaries, or legatees of this fund, and were entitled to it absolutely, each to one half thereof, in its own right, the moment the right to the intermediate, or temporary use and enjoyment became extinguished, and the executors, if the title ever vested in them, took and held it for their benefit, as well as for the benefit of the *568widow until her right to the use no longer existed, when it became absolutely the property of these two societies. This is plainly the scheme of the will, and the evident intent of the 'testator. Evidently it was not intended that the plaintiffs’ rights should depend entirely for their existence, upon the election of the widow to accept or reject the provisions of the will in her favor. She is not, anywhere in the will, clothed with the power of making the provision in the plaintiffs’ favor valid or void at her pleasure, She might neglect or refuse to take the benefit of the provision for herself, but she could not in that way destroy the rights of the plaintiffs. The moment the right to the intervening use was extingushed, no matter how, the rights of the plaintiffs, which were in their nature ultimate and absolute, to the fund, became complete and perfect. What these plaintiffs and the other society were entitled to by virtue of the bequest, was the amount of this fund, whatever that amount might be, when the prior right, to use and enjoy, should no longer exist. It was by no means essential to the existence, or validity of the plaintiffs’ right, that the fund should first be invested in the purchase of a house. That pertained to the interest of the widow only. Whatever form the fund-might exist in, before the plaintiffs were entitled to possession, it was to come to the plaintiffs in the form of money only. Had it been converted iffo real estate, it might have been more or less than §1200, when reconverted into money for the use of the plaintiffs and the other society, and then each would have taken one half, whether the amount was more or less. But as .all prior right of use was extinguished. before the fund had been converted into real estate, and while it existed in the hands of the executors, as it first came to them, the plaintiffs were entitled to one half, or six hundred dollars absolutely and unconditionally, .payable at the expiration of one year next after the issuing of the letters testamentary. In that the plaintiffs took, as legatees *569merely, the bequest discharged from the incumbrance of the trust.
The question then arises whether the plaintiffs’ claim is not barred by the statute. It is obvious that the widow of the testator, having died without making her election to accept the provisions of the will in her favor, and before she could be deemed in- law to have accepted the same, never became a beneficiary in fact or in law, of the trust fund intended for her benefit. The relation of trustees, and cestui que trust between her and the executors, the foundation of which was laid in the will, was never formed and matured, and no claims on the one side, or duties and obligations or the other, belonging to that relation, ever sprung up or existed between the parties. In that the contemplated trust, so far as she was concerned, never went into effect, and the laudable designs and intentions of the testator towards her, were frustrated, and rendered altogether unavailing by her demise before electing to become a beneficiary of the proffered trust fund. This removed all obstacles to the immediate possession and enjoyment of one half the fund by the plaintiffs. The executors, then, held it for the plaintiffs solely, and had no duty to perform in regard to it, except to pay it over. In fact the widow died before the will was admitted to probate, and all the provisions of the will, by which an active and technical trust was intended to be created, had been rendered abortive, before the funds actually came to the hands of the defendants. The trust intended never having gone into operation, or had a legal existence, there never was any technical trust in favor of the plaintiffs, and no relation of trustee and cestui que trust of that character between the plaintiffs and the defendants. The relation was simply that of executor and legatee, and the trust was of that character only. The right of the plaintiffs to the half of the contemplated fund, was a vested right from the beginning, or in any event at the death of the widow, *570and an action could unquestionably have been maintained therefor immediately upon the expiration of the year after the granting of letters testamentary. (2 R. S. 214, § 9.) If an action could have been maintained in the nature of a legal action to recover the legacy bequeathed, the right of action is barred by statute, as more than six years had elapsed since the expiration of the year, before this action was commenced. This is well settled. (Smith v. Remington, (42 Barb. 75, and cases there cited.) Where there is a strict technical and continuing trust, which is cognizable only in a court of equity, no lapse of time will bar the claim of the cestui que trust. But this rule is confined strictly to cases of that character. (Borst v. Corey, 15 N. Y. Rep. 505.) That this is no such case seems to me extremely clear. There can, I think, be no reasonable doubt that this claim was cognizable in a legal action.. Indeed such is clearly the character of the action brought. It is to recover a specific sum of money, bequeathed, and not to enforce a trust as such.. The court at special term was right, therefore; in holding that the right of action was barred by the statute of limitations, and the judgment must be affirmed.
[Monroe General Term,
September 7, 1868.
E. D. Smith, Johnson and J. C. Smith, Justices.]