55 N.Y.S. 7 | N.Y. App. Div. | 1898
This action is for the construction of the will of John J. Felter. The following are the only parts of the will material to this controversy:
“ 3rd. All the rest, residue and remainder of my property, both real and personal, I give and bequeath to my four sons and two daughters, viz., Charles Felter, Jane E. Ackerson, Mary L. Felter, George S. Felter, William S. Felter and John J. Felter, Jr. to be divided equally between them, share and share alike. * * *
“ Hth. I order and direct that the shares to be given to my sons William S. Felter and John J. Felter, Jr., be held in trust for them and that George William Reimer, of Rockland Lake, act as trustee of said property and pay over to said William S. Felter and John J. Felter, Jr., the respective incomes derived therefrom.”
The learned judge at Special Term held that by the 7th clause valid trusts were created in the shares of the two plaintiffs, to continue during their respective lives, and that as to the remainders on their death the testator died intestate and that the same passed to his heirs at law.
We think the decision of the Special Term, that a valid trust Avascreated in each of the shares of the sons William S. and John J.,, was correct. It is true that in the Avill there is found no express-bequest or devise to the trustee, but, nevertheless, the intent of the testator is expressed too clearly to admit of mistake and a devise or bequest to the trustee may be implied. (Brewster v. Striker, 2 N. Y. 19.) “ It is by no means necessary that the donee should be expressly directed to hold the property to certain1 uses ’ or ‘in trust’ or as ‘ trustee.’ * * * It is one of the fixed rules of equitable construction that there is no magic in particular words, and any expressions that show unequivocally the intention of the parties to-create a trust will have the same effect.” (Hill Trust. [4th ed.] 101 Tobias v. Ketchum,, 32 N. Y. 319. See, also, Ward v. Ward, 105 id. 68.)
But Ave think that the court at Special Term erred in its determination that the remainders in these shares after the death of the.
The judgment appealed from should be modified so as to declare that each of the plaintiffs has a vested remainder in his share from and after his own decease, the costs of all parties to be paid out of the estate.
All concurred.
Judgment modified so as to declare that each of the plaintiffs has a vested remainder in his share from and after his own decease, and •as modified affirmed, the costs of all parties to be paid out of the «estate.