I concur in so much of the opinion of Mr. Justice Pattebson as holds that, even if the direction for the application of a part of the rents, issues, profits and income of the property and'estate, both real and personal, devised to trustees is invalid, the remainder of the trust may be maintained and the surplus income distributed among those entitled to the next eventual estate.
But I do not concur in the construction placed by him upon subdivisions 2 and 3 of section 55, page 128, of the Revised Statutes. It is true that in the case of Parks v. Parks (9 Paige, 116) the chancellor correctly states that the Revised Statutes have authorized the creation of an express trust to lease lands for the purpose of satisfying the charges thereon, and then dogmatically asserts that the authority of the trustees to pay the interest upon the incumbrances out of the rents and profits of these lots in the first place, and to apply so much of those rents and profits as might be spared from the support of the cestuis que trust to reduce the principal of the incumbrances on their respective lots, was, therefore, valid, and should be carried into effect according to the intention of the. testator. It is to be observed, in the consideration of this language, that the chancellor was dealing with a devise of two lots, and the application of a portion of the rents and profits of each particular lot to the reduction of the principal of the incumbrance upon that lot. The distinction between the powers conferred by the 2d and 3d subdivisions of section 55, in respect to the leasing of lands and the receiving of the rents and profits thereof, is nowhere considered by the chancellor, does not seem to have been brought to his attention, and is not passed upon.
It is claimed that the rule laid down by the chancellor in the case referred to was adopted by the Court of Appeals in the cases of Leggett v. Perkins (2 N. Y. 297) and Van Schuyver v. Mulford (59 id. 426). But no such question was involved. All that the court stated in those cases was that the question involved in Leggett v. Perkins was distinctly presented in Parks v. Parks, and the *354validity of a trust of that description was affirmed by their judgment, the court stating that the question should be deemed at rest upon authority.
The question in the case of Leggett v. Perkins was whether a trust, to receive the rents and profits of land and to pay them to a person, could be sustained under the 3d subdivision of section 55 (supra), which authorizes a trust to receive the rents and profits of land and to apply them to the use of any person. That was the only point in the case, and that was the only part of the decision of the chancellor in Parks v. Parks which was approved. That was the question involved in Gott v. Cook (7 Paige, 521) and in Mason v. Mason's Executors (2 Sandf. Ch. 432), which were cited as authority in support of the trust, then being considered in Leggett v. Perkins. The chancellor’s decision was only approved in respect to that particular trust.
But upon an examination of the will under consideration it would seem, that no such question as has been discussed is in any respect involved. Ho authority in the statute can be found whereby a trust may be created for the purpose' of receiving the rents, income and' profits .of real and personal'property and devoting them to the payment of incumbrances existing upon a portion of the real estate, and that is the direction contained in the will in question.
The testator died, leaving real and personal property. His real estate consisted of two houses and lots, H os. 347 and 349 First avenue, in the city of Hew York.' Upon the premises Ho. 349 First avenue was a mortgage of $3,000, and the will devised all of his real and personal property to his trustees, with directions to collect and receive the rents, issues, profits and income, and, after paying all taxes, assessments, Croton water rents, interest, costs of insurance, repairs and all other necessary expenses which might be imposed upon his real estate and be necessary to keep the same in running order, to apply the same to the maintenance, support and education of Ms minor children and to pay off the mortgages which were liens on his real estate. Here is a distinct direction to apply the income and profits of personal estate to paying the charges upon real estate, and to apply the rents, issues and profits received from one piece of real estate to the payment of the charges upon another. The language of the statute is, that a trust may be created to lease lands for *355the purpose of satisfying any charges thereon. This language does not by any means authorize the application of the income of real estate to the payment of liens generally upon such estate. The rents and profits of each particular piece must at least be applied to the discharge of incumbran ces upon that piece of real property. ■ Lands may be leased to pay incumbrances thereon is the language of the statute.
All this is borne out by the language of the chancellor in his construction of section 55 in Parks v. Parks. He is particular to limit in his language the validity of the trust to the fact that the rents and profits of each lot are to be applied to the reduction of the incumbrance upon that lot.
And, furthermore, in view of the condition of affairs at the time of the commencement of this action, I do not see how any question in regard to this provision of the will can come up for adjudication. It appears that two years prior to the commencement of the action the mortgage in question had been paid and discharged, and there is, therefore, nothing whatever in this branch'of the case.for the judgment of the court to act upon, and it has become merely a moot question upon which our decision can have no weight. The only event in which it could be important would be in case the question arose as to whether, that provision being void, it would invalidate the whole provision made for the benefit of the minor children; and when we have come to the conclusion, as we have, that that provision might be lopped off and the provision for the children remain, it becomes entirely unnecessary for us to consider the question as to whether the provision for the application of the rents and profits of the real and personal estate to the payment of an incumbrance upon a portion of the real estate is valid or not.
This action was brought, undoubtedly, for the purpose of having • the limitations upon the suspension of the power of alienation declared void, and also the provision in regard to the application of income to the use of the infants; and when we have determined those questions in favor of the validity of the will it seems to me that there is nothing left for adjudication.
The judgment should be reversed.
Williams, J., concurred.
. Judgment reversed and complaint dismissed, with costs to the defendants.