I concur with Mr. Justice Rumsey so far as he holds that when this will was executed there existed between Mr. Parsons, one of the executors who prepared the will, and Miss Edson, the testatrix, an implied understanding as to her wishes in regard to the property left to her executors, and that she relied in giving it to him and his co-executors upon his tacit consent, to be governed in the disposition of it by her wishes in the will expressed, and that this brings the case, so far as he is affected, clearly within the cases cited by him in his opinion. I do not concur in his conclusion as to its effect upon the share left to the other executors, Messrs. Fairchild and Bartow. By the will in question the testatrix attempted to make a disposition of all her property, dividing the residuary estate among the several charities named by her. Fully appreciating the fact, however, that this disposition of her residuary estate might be invalid according to the law of this State, an attempt was made by her to evade the result of such illegality by the disposition that she made of her residuary estate in case that contingency should happen. The evidence shows that if the conclusion arrived at by Mr. Justice Rumsey is correct, she has been successful, so far as two-thirds of her estate was affected, and that a scheme has been here devised by which a testator, by selecting gentlemen of character and a keen sense of honor, can in all cases render nugatory any provision of law limiting the disposition that can be made of property by a last will and testament. That the court should End themselves in such a predicament and feel themselves bound to enforce a will which, considering its provisions and the acts of those selected to execute its provisions, has resulted in an illegal disposition of this property, a disposition prohibited by the positive law of this State, seems to me to confess an impotence in the administration of the law entirely unjustified.
*119The position here presented is exactly that presented to the court in Matter of Will of O'Hara (95 N. Y. 420): “ If equity will not touch this devise by potting a trust for the heirs at law and next of kin upon the fund in the hands of these legatees, the road to an evasion of our statutes and to the temptations of necessity or greed will be left wide open. While in such cases it has been well said that the court should act with caution and only upon the clearest proof of the fraud (Collins v. Hope, 20 Ohio, 501); yet when, as here, the facts are proved beyond reasonable question, we ought not to hesitate. The testatrix did intend an absolute devise to these legatees on the face of the will, but she did not intend that they should have the resultant beneficial interest, and relied upon their promise to carry its fruits elsewhere. They do not refuse to perform. Although they deny the promise, it is quite possible that they mean to keep it. We are not authorized to say or suspect that they will not, but if they do, they must inevitably carry out a planned and purposed evasion of our statutes against perpetuities. * * * The principal legatee in this case knew it, and it was distinctly planned between him and the testatrix that her understood and declared purpose, which could not be lawfully carried out by a devise on the face of the will, should be effected by an absolute devise coupled with his honorable obligation to hold and appropriate the property to forbidden uses. An evasion of the law was the very occasion and object of the absolute devise. Without that, it could not have been suggested without a fraud upon the testatrix, for if there was no need of it, if no statute was to be avoided or flanked, the very suggestion of an absolute devise was fraudulent. * * * Any devise or bequest of this character is dangerous and indefensible. It exposes testators to the suggestion of unnecessary difficulties as inducements to the artifice of an absolute devise concealing an illegal trust. It exposes the devisee to temptation and, even when he acts honestly, to severe and unrelenting criticism. It subserves no good or useful purpose. If we sustain it, we admit that any statute may be thus evaded, and that equity cannot redress the wrong.” In this case, the evidence goes further and shows that the testatrix was not mistaken in depending upon those whom she selected as her instruments to evade the law. Shortly after the probate of the will, these executors did carry out *120her wishes. Mr. Bartow, one of the executors, testified that he executed this instrument called a grant, because he considered that he was carrying out the wishes of Miss Edson, and when asked whether he felt that lie was bound to do what he did with the property, he answered, “ I don’t think I was legally bound to do it; ” and then when the question was put to him, “But in honor and conscience,” he answered, “ I knew what Miss Edson’s wishes were as expressed in her will, and if she chose to leave that money for myself, which she did, I considered that it was the part of an honest man to try to carry out her wishes.”
Mr. Fairchild, another of the executors and residuary legatees, said, “ I don’t think that at any time I had any intention of keeping any of that money for myself. * * * I did not have any such intention.” When asked the question, “ Why didn’t you keep it, or any part of it, for yourself ? ” he answered, “ I thought I would be ashamed to. I did not think that was the intent of the testatrix. I thought that her whole purpose was that the portion of her property given to us by the last clause should go to some benevolent objects. Failing it going as she expressed in her will, I felt that her intention was to give this property to us to be disposed of as we thought best for benevolent objects. I did not think that she intended that I should keep any of it for myself. I did not think that she intended that. I think that keeping it for ourselves would have been what I and Mr. Bartow, or either of us, or Mr. Parsons, might well have been ashamed of.”
It is impossible to resist the conclusion that all three of these executors considered themselves bound — if not legally, at least morally, and as honest men — to use this property left to them by this will to carry out the illegal disposition that Miss Edson had attempted to make by the will; that to have used this legacy in any other manner would have been a dishonorable act on their part, and one that would have exposed them to disgrace, and that she and Mr. Parsons, when he prepared the will, well knew that this consideration would require that they should join with Mr. Parsons in executing the implied or tacit understanding between Mr. Parsons and the testatrix, in pursuance of which this residuary clause was inserted in the will and codicil and thus became a part of Miss Edson’s will.. Mr. Justice Rumsey concedes in his opinion that, if these three *121executors had been joint tenants of this property, applying the principle in Matter of Will of O'IIara (supra), the executors would hold the legacy or devise to them as trustees for the next of kin. But he holds that as they were tenants in common, and applying the principle stated by Vice-Chancellor Sir W. Page Wood in Tee v. Ferris (2 K & J. 366), that it was only the share of Mr. Parsons with whom the implied or positive agreement could be said to have been proved that was affected.
The terms of the will before the court in the O'Hara case are not stated in the report. The nature of the bequest contained in the will is stated by Judge Finch, in delivering the opinion of the court: “ The testatrix gave to three persons, who were her lawyer, her doctor and her priest, absolutely, but as joint tenants, the bulk of her estate; ” and in that case the only one who had any knowledge of the intention of the testator was, as in this case, the lawyer who drew the will. I think it can be said, however, that in this case the bequest or devise was not to the executors as tenants in common, but as joint tenants, and thus the principle established by the will of O’Hara applies. This clause originally appeared in a draft will prepared by Mr. Parsons, and was submitted to the testatrix. That original draft will provided that, if for any reason any legacy should lapse or fail, “ I give and bequeath the amount thereof absolutely to my executors. In tlié use of the same I am satisfied that they will follow what they believe to be my wishes.” If the will as executed had stood in this condition, I do not suppose it would be claimed but that the bequest would be one to the executors as a class, and would thus be joint and not several. In the will, however, as executed the clause stands, “ I give and bequeath the amount which shall lapse, fail or not take effect absolutely to the persons named as my executors.” The rest of the clause is the same, the words interpolated being “ the persons named as.” Did the interpolation of these words change the character of this bequest ? It is a canon of construction, universally applied, that the sole object of a court is to ascertain and enforce the intention of the testator, and we have here before us, in the language in this very will itself, the clearly expressed intent with which this testatrix used these words which she added to a will which disposed of all her property, this *122clause in question. What was that intent ? That she, having made certain dispositions of a large portion of her property, ahout the validity of which there might arise serious doubts because what she attempted ■ to do might be illegal, wished to provide a method by which such illegal disposition of the property could he consummated, relying upon the honor and integrity of her three executors to accomplish that result. Was it her intention that these three executors should take this property as tenants in common as their own property and dispose of it for their own purpose ? Clearly not. What she intended to do was to leave this property to her executors to carry out her intention if it should appear that that intention was illegal and could not be carried out by the will; in other words, it was her intention that her executors should be vested with the property to make a disposition of it, which the law said that she should not make hy will, and to carry out that intention she created her executors her residuary legatees. Is it not clear that this bequest was not to these executors as tenants in common; not to them as individuals, but as joint tenants, for the purpose of carrying, out this illegal testamentary distribution of her property? It seems to me that this was the clearly expressed intention of the testatrix. The will makes no provision as to sharing the property between the executors ; contains no provision as to its going to their representatives in case of their death. It simply says that she gives the property to these persons personally and absolutely and without limitation or restriction, hut with a full confidence that they will use the property in such a manner as to carry out her wishes. Those wishes, the only wishes she expressed, and the wishes that these executors have attempted to carry out, was the illegal disposition of the property that she had attempted in her will. To say that the testatrix intended by this provision to create these executors the owners as tenants in common of this property, to be used by them and to pass to their representatives in the event of their death, would, it seems to me, violate the expressed intention of the testator. If, however, we should feel constrained to hold that these executors took this bequest as tenants in common, I do not think that it would follow that this bequest vested an individual share in each of the executors absolutely not affected by the trust which applied to the share of Mr. Parsons. I think that the principle applied in the case of Russell v. Jackson *123(10 Hare, 206) is applicable and should be applied. There Lord Justice Turner, then vice-chancellor, said : “ But, whether Thomas Aston Jackson was present or not, the evidence is, I think, clear that the gift would not have been made to him but for the promise given by William Jackson, that the intentions of the testator should be carried into effect; and I fully agree to the principles laid down in TIuguenm v. JBaseley, followed in many other cases, that no person can claim an interest under a fraud committed by another. However innocent the party may be, if the original transaction is tainted with fraud, that taint runs through the derivative interest and prevents any party from claiming under it.” This case has been criticised by Vice-Chancellor Wood in Tee v. Ferris (supra\ and in several other cases; but the will in the case at bar differs substantially from those discussed in the cases last referred to. In none of these cases has it appeared that the bequest to the persons named was intended as a method of evading a statute or rule of law, but the intention of the testator was found in proof outside of the will. In this case it seems that the intention of the testatrix is clearly expi'essed in the will. Extrinsic evidence was only necessary to show that that intention had been communicated to one of the legatees prior to the execution of the will, so that the will was-executed by the testatrix, relying upon an implied or tacit understanding that such intention should be carrried into effect. And when such a tacit or implied understanding obviously related to the disposition of the entire residuary estate to the three executors, its acceptance by either of the executors carried with such acceptance an obligation to comply with that tacit understanding.
If Mr. Parsons, when he submitted this will to the testatrix, had said to her, “ I agree that in case any of these legacies are void I will apply the property coming to me under this bequest to carrying out your intention with regard to the charitable disposition of your property,” and that “ my co-executors will unite with me in such a disposition of all property that passes to them under this bequest,”’ could it be said that either of the executors could have accepted the bequest with knowledge of this obligation made on their behalf and obtained upon such a representation, and repudiate the obligation ?. It seems to me clear that they could not. That, accepting the bequest, they would be clearly bound by the conditions upon which. *124it was given, and would ratify the promise made on their behalf. This is just the understanding that the law implies in consequence of the acts of Mr. Parsons in inducing the testatrix to make this will in question. Under the circumstances the law implies a tacit understanding between Mr. Parsons and the testatrix that this property should go to the executors as executors, not for their own benefit, but, although vesting in them individually, should be applied to carry out the intention of the testatrix. That having been the tacit understanding under which the will was executed, however innocent these two executors may have been of the arrangement between Mr. Parsons and the testatrix upon accepting the bequest, they ratified the understanding between their co-executor and legatee and the testatrix, which induced the execution of the will; and it is quite evident that this is exactly what the defendants Bartow and Fairchild -understood was the condition upon which the bequest to them was made. It is true that they say that they understood there was no “ legal obligation; ” but it seems to me clear that they did understand that the testatrix did not intend that they should take this property as absolute owners for their own benefit, but impressed with an obligation or trust to carry out her wishes, and that when they accepted it upon that condition they were bound to apply it in such a way that it would accomplish that intention.
I concur with Judge Rumsey in his disposition of the other questions involved, and I, therefore, think that the judgment entered here should be that the residuary estate of the testatrix not disposed of by the will should go to the plaintiff as the executrix of the next of kin. I think I should say also that I concur with Mr. Justice Rumsey in saying that these executors have but too faithfully attempted to carry out the trust that the testatrix imposed upon them, and that it was the illegal intent of the testatrix to make a disposition of her property prohibited by law, attempted to be carried into effect by her executors, that in my opinion has rendered their action invalid.
As to defendants Bartow, Fairchild and Huntington, judgment affirmed, with costs to be paid by plaintiff; as to defendant Parsons judgment reversed, with costs, and judgment ordered as directed in opinion.