Opinion
June Term, 1899.
C.E. Sutherland, for the appellant.
Joseph Alfred Greene, for the respondent.
It appears in the agreed statement of facts that the plaintiff was a daughter of John Butler, who died, leaving a last will and testament, in which he devised his estate, as follows:
" First. I give and bequeath to my son Orlando Butler and his heirs, all my real and personal estate, including household furniture, subject to the provision of the use and income of two-thirds of the whole real and personal estate to my daughters Elizabeth and Alpheretta, to each the use of one-third of the whole real and personal during her natural life, each share at her death to revert and belong to my son Orlando and his heirs absolutely. And I hereby appoint my son Orlando my sole executor of this my last will and testament."
After the death of the testator, Orlando conveyed by deed all his right, title and interest in and to the property which he took by virtue of the provisions of the will, to the plaintiff and her sister, and they executed to him a release of all liability on account of the estate of his father. The plaintiff and her sister thereby became the legal owners of the entire estate. Subsequently, and on the 6th day of February, 1897, Alpheretta G. Butler, one of the devisees under the will and one of the grantees in the conveyance of Orlando Butler, began an action for the partition of the premises mentioned in the will, in which she made as parties defendant Mary Elizabeth Butler, her sister and a devisee under the will, and Wright Perry, a mortgagee of the premises. That action proceeded to judgment; and it appearing that the premises could not be profitably divided, a sale of the same was ordered, and upon such sale the defendant Norman L. Coe became the purchaser. He paid the purchase price and entered into possession of the premises. Subsequently this action was brought in which the relief demanded was that the judgment in the said action of partition be set aside; that the deed of conveyance to the defendant Coe be annulled; that a trustee be appointed of the estate of the deceased; that an accounting be had between the parties hereto of the rents, issues and profits of said land, and that the plaintiff be put in possession of the same pursuant to the terms of the will of the testator.
The theory of the action is that Orlando Butler took title to the whole estate as trustee, and that, as such, he could not destroy the valid trust created thereby; in consequence of which no estate or title to the premises has passed either to the devisees mentioned in the will or to the purchaser of the property in the action of partition.
Assuming that the terms of the will created a valid trust in Orlando Butler, it is by no means certain that, since the enactment of chapter 452 of the Laws of 1893, amending section 63, article 2, title 2, chapter 1, part 2 of the Revised Statutes, such conveyance is not authorized. ( Snedeker v. Congdon, 41 App. Div. 433.) It is not necessary, however, to decide such question in this connection. It is quite clear that the will did not create Orlando Butler a trustee of the estate, and vest him with title thereto in that capacity. There are no words in the will creating such estate. No direction is given that he, or any other person, shall collect or receive and pay over the rents and income of the estate to the other devisees named in the will. The bequest is to each daughter of the use of one-third of the property during her natural life, and it does not appear that it was at all necessary, for the use and enjoyment of such estate, that any person should be given control or charge of the same in order that the devisees might receive the benefits therefrom.
The office of a trustee is to take legal title, to receive the rents and profits and pay them over to the cestui que trust; and while it is true that a trust may be created by implication, where there are no words declaring it, yet such a result is worked only where it is necessary to carry out the scheme of the will. Such is the case of Woodward v. James ( 115 N.Y. 346), relied upon by the appellant. The difference between the two cases is readily apparent. In the case cited a trust was necessarily implied in order to carry out the provisions of the will, while, in the case before us, no such provision is necessary to give full force to every provision of the will, and protect each devisee therein. As there are no words creating a trust, so there is no condition requiring that one be implied.
If, however, a valid trust had been created by the terms of the will, this action could not be maintained. If such a trust existed the legal title would be vested in the trustee; and in order to maintain the action it should have been brought in his name, or, if upon request he refused, the action might be maintained in the name of a party in interest, making the trustee a party defendant. ( Anderson v. Daley, 38 App. Div. 505.) But in order to maintain such action the complaint must aver the fact that, upon request to bring the action, the trustee had refused. ( Flynn v. Brooklyn City R.R. Co., 158 N.Y. 493; Prentiss v. Bowden, 145 id. 342.) No averment is found in this complaint of any demand made upon the trustee to bring the action, or of refusal upon his part so to do. On the contrary the 11th allegation of the complaint is that no trustee of the property has been appointed by any court of this State, nor has any application ever been made for the appointment of such a trustee to any court of the State. This is an essential part of the plaintiff's cause of action, as she is seeking to enforce a legal title or interest in this estate, when in fact she has no legal title thereto. Undoubtedly she might apply to the trustee, if such existed, and upon his refusal, aver such facts, making all the parties in interest parties thereto, or apply to the Supreme Court for the appointment of a trustee for such purpose. Not having done so, she has no standing to maintain this action.
But if it were otherwise it would not change the result. There was no prohibition resting upon Orlando Butler which prevented his making a valid conveyance of his whole estate in the property which was devised to him by the terms of the will. When he executed the deed, the legal title as well as the equitable interest became vested in the plaintiff and her sister. Under such circumstances partition of the property was sought, and all the parties in interest were made parties to that action. This resulted in judgment, and under such judgment the defendant Coe obtained good title by his purchase. This judgment stands unreversed, and may be, as it has been, invoked by the defendant Coe for the protection of his title, and as such it is conclusive. ( Park Hill Co. v. Herriot, 41 App. Div. 324; Jordan v. Van Epps, 85 N.Y. 427.)
In no view of this case is the plaintiff entitled to maintain the action.
The judgment should be affirmed.
All concurred
Judgment affirmed, with costs.