[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 329
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 330
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 331 There is no technical rule of law to be applied in the construction of the 6th clause of this will. The intention of the testator, as that can be ascertained from the language used, is to control and have effect. Did the testator intend to vest Frederick P. Forster and Henry A. Forster, these plaintiffs, as individuals, absolutely with the title to the land or its proceeds? Before a gift to executors eo nomine can be held *Page 333 to vest in them individually the intention that it should so vest must be plainly manifested. In the language here used we find no such intention. He appoints the plaintiffs executors of his will and gives them a power of sale. Then he directs them out of the proceeds realized by them from the execution of the power of sale, which they are to receive as trustees and in trust, to pay any debts that he might owe, including mortgages, and then he gives the entire residue, after payment of such debts, to his executors and to the survivor of them as joint tenants. If there were no more in this clause of the will it would scarcely be claimed that the testator had manifested any intention to vest the executors individually with the title to the land or its proceeds. All the language used relates to them as executors, and to them only in their official capacity. The gift is to them as joint tenants, and to the survivor of them, thus showing clearly that he was dealing with them in their official capacity.
The last part of this clause does not qualify what precedes it. There he says: "I have entire confidence that they will make such disposition of such residue, as, under the circumstances, were I alive and to be consulted, they know would meet my approval." This language does not necessarily imply that they were to take the land or its proceeds as individuals. It was just as appropriate in its relation to them as executors. He gives the real estate or its proceeds to them upon some undefined trust, a confidence not disclosed. The testator evidently supposed that the secret trust would be carried out, and possibly that it could legally be enforced. While it is quite true that this trust is unauthorized, that no estate can, under this gift, upon this undefined and void trust, vest in the executors as trustees, and that they take a mere power of sale for the purposes specified in the will, yet these circumstances do not authorize us to hold that language which would otherwise be construed as a gift to them as executors, should be construed as a gift to them as individuals. It is sufficient to refer for the general rule of construction of such a clause in a will, to 1 Perry on Trusts, sec. 158, and Lewin *Page 334 on Trusts, page 149 and cases there cited. We find no authority which sustains a different construction.
Our conclusion, therefore, is that under this will the plaintiffs did not take title to this real estate as individuals, and that as such they cannot convey any title to the land in question to the defendant, and that, therefore, the defendant is entitled to a return of the deposit and a cancellation of his contract of purchase.
The judgment of the General Term should, therefore, be reversed, and judgment given for the defendant in accordance with this opinion with costs in the Supreme Court and in this court.
All concur.
Judgment accordingly.