The will vested the title to the real estate in question in the plaintiff, unless a valid, express trust was created.
Such a trust can only be created for the purposes mentioned in *240the statute (1 R. S. 728, § 55), and unless this comes within the 3d subdivision of the section, namely, “ To receive the rents and profits of lands, and apply them to the use of any person during the life of such person, or for any shorter term,” it is unauthorized. In this will the trust is not to apply “ the rents and profits of lands ” to the use of the devisees, but to do one or the other of two things in the discretion of the trustees : (1) “ To pay over or apply the avails, in their discretion, of the estate devised and bequeathed to said nieces and nephew, to each of them respectively from time to time.” “ Avails ” may mean rents and profits, and it may mean proceeds from the sale of the land itself, or both. (Brown v. Harris, 25 Barb. 134.) A trust to pay from time to time, in the discretion of the trustee, the avails of the sale of the laud, devised absolutely to the cestui que foust, is not within the terms of the statute, and, therefore, is invalid. (Cooke v. Platt, 98 N. Y. 35; Konvalinka v. Schlegel, 104 id. 125; Chamberlain v. Taylor, 105 id. 185.) It is true the testatrix directs the trustee to hold the devised estate during the life of the devisee, but this clause, being construed in connection with his duty to pay the avails in his discretion, must mean to hold what he does not pay out. Clearly the testatrix meant that the trustee should pay to the devisee both corpus and income, if he thought proper to do so. The record shows that the income is insufficient for plaintiff’s support.
(2) The other alternative is: “ Or devote the same (i. e., the avails of the estate) in some judicious way for their use and benefit.” The statute defines the way, namely, to apply the rents and profits “ to the use ” of the cestui que trust, and does not permit the trustee to devise any other judicious way. What this trustee’s ingenuity might devise the record does not inform us. Besides, he is permitted to apply the avails, and is not limited to the rents and profits.
II. As my brother Merwin shows, the law does not limit or confine trusts as to personal property, except in reference to the suspension of ownership, and they may be created for any purpose not forbidden by law. The trust as to the personal property is, therefore, good. By its very terms the trustee may, in his discretion, pay the avails of it to the plaintiff from time to time. I see no reason why the judgment should not permit him to do so. No one has the slightest claim upon the fund except the plaintiff.
*241I advise judgment that the trust is void as to the real estate, and that the defendant pay the plaintiff the avails of the personal estate in his discretion.
Judgment ordered as stated in the opinion (of Merwin, J.), with costs to the parties, payable from the fund.