(concurring):
I confess that my first impressions were somewhat adverse to the validity of the trust to apply the rents, issues, profits and income of the real estate to paying off the mortgages which were liens thereon. I had always supposed that the opinion of Judge Bronson, in Hawley v. James, was the law of this State. But a critical re-examinatian of that case has convinced me that Judge Bronson’s remarks upon the point discussed by Mr. Justice Patterson were obiter. They were not necessary to the decision of any question then presented, and they were not restated in substance or otherwise by any of the other judges. Hawley v. James was decided in the Court of Errors in December, 1836. Parks v. Parks (9 Paige, 107) was decided by the chancellor in April, 1841, and his decision was affirmed by the Court of Errors in December, 1842 (see report of this case 9 Paige, foot of page 127). The question under consideration was distinctly presented, in Parks v. Parks, and was necessary for the decision both in the Court of Chancery and the Court of Errors. It thus appears that nearly six years after Judge Bronson handed down his opinion in Hawley v. James, and with that opinion before the public, and doubtless before the court, the Court of Errors affirmed the chancellor’s judgment upon this very point. Parks y. Parks has not since been questioned. It was approved and followed as to other questions in Leggett v. Perkins (2 N. Y. 297) and in Van Schuyver v. Mulford (59 id. 426). The question thus seems to be set at rest by authority. But looking at it *352upon principle, I think Mr. Justice Patters ox’s reasoning, based upon the omission of the word “ lease ” in section 56 of the Statute of Uses, is entirely convincing. It would, of course, have been incongruous and absurd to provide that a devise of land to trustees to be leased where the trustees are not also empowered to receive the rents and profits, shall vest no estate, etc. The very act of leasing implies- power to receive the rents. The intent under subdivision 2 of section 55, to create an' express trust (with trust title in the trustee) for the benefit of legatees, or for the purpose of satisfying any charge upon the lands, is thus apparent.' Such an express trust is not for alienation, but is in suspense of alienation.
The only other difficulty is as to the manner in which the trust is here' formulated. It follows the 3d subdivision of section 55. The expression used accords with the language of this subdivision, and not, in terms at least, with the -language óf subdivision 2. . The trustees are to receive the rents and profits of the lands and to apply them, first, to a concededly proper purpose, and next to the paying off of mortgages. I think the intention of the testator was to keep within the statute and that he has done so ; that he acted upon the belief that the rents and profits could only be received by leasing the lands.; and that such leasing is clearly to be implied. It. is true that trustees may receive the profits of land without an actual leasing. They may, for instance, work farm lands and themselves secure the crops. But when we consider that the land in question was city property, and that-the rents and profits of such property nécessarily accrue from a leasing of some sort, the intention of the testator cannot well be doubted. He was not bound to specify the particular subdivision of the section in question, -nor to use the.precise language of that subdivision. He could lawfully embrace all the trust purposes'authorized in the various subdivisions of the section in a single paragraph. All that was necessary was that the various trust purposes should be lawful; that is, should all be within the section; and that all such trust purposes might lawfully be executed under the power conferred. Here the trustees could lawfully lease to secure the rents and profits to be applied under the two-fold direction. They could do so under the strict terms of the trust instrument; and their doing so would be just what the testator contemplated and impliedly directed.
*353Upon all the other questions I never entertained any doubt. I agree, therefore, that the j augment should be reversed.
Rumsey and Patterson, JJ., concurred.