The plaintiff, in his complaint, alleges that one Martha A. Odell died seized of certain real and personal property; that, by the 3d clause of. her will, which is set forth in full, said Martha A. Odell devised and bequeathed the residue of her property, real and personal, to her executors, the defendants James B. Odell and Mary Jane Barnes, in trust, to collect the rents, issues and profits thereof and pay the same over to her husband, the said James B, Odell, during his natural life, and, upon his decease, the principal to he divided between certain legatees and devisees; that the defendants James B. Odell and Mary J. Barnes undertook and pretend to hold *606and. manage the lands, as such trustees and executors ; that plaintiff purchased from one Alanson J. Prime, general assignee of James B. Odell; all the interest which the said assignee acquired under and by virtue of a general assignment dated the 8th day of January, 1895; that the said defendants have failed and. neglected to execute and perform in a proper manner their duties as- executors and trustees, or to file any accorint or inventory of the proceeds of the estafe,-and also have failed to apply any. moneys to the benefit of the plaintiff. Judgment is then demanded that the defendants Odell and Barnes be compelled to render an account of their proceedings, and tliat they be removed as executors and trustees". At the opening of the case the court dismisséd the complaint, on- the ground that it-.did not state facts sufficient to constitute a. cause, of action, or any reason why the court should assume jurisdiction' of' the action. ' From the judgment entered on that decision this appeal is taken. . .
We- are of opinion - that the. case was properly .disposed of . at Special Term, If the 3d clause of the will of Martha A. Odell is effective to create a trust, it was a trust to pay over the rents and income to the husband, James B. Odell. This is, in effect-,, to Apply-such income to his use (Leggett v. Perkins, 2 N. Y. 297), and the interest of tlie beneficiary is by the statute ■ inalienable.' (1. E. S. ?30, § 63.) A creditor may, in a proper action,, compel the application of any surplus beyond that necessary to -support the beneficiary to the payment of his claim, but the -sole title of the plaintiff proceeds from the transfer of the beneficiary,, which is. wholly void. Tim plaintiff has, therefore, no interest-in the subject-matter of the ■trust, principal or income, and it -is of no concern to him how the trust is managed-or mismanaged. '
The only objection -that can be suggested as- to the validity of the trust is that the beneficiary is made one of the trustees. If' he were appointed the sole trustee no trust would be created, but the-husband would-t-aké a legal life estate. (Greene v. Greene, 125 N. Y. 506.). But Amory v. Lord (9 N. Y. 403) would seem authority for the proposition that' where the beneficiary is only one of several trustees, the- trust is valid. But if' w'e assume that the trust attempted to be created fails and is void, plainly in such case the plaintiff cannot maintain this action. He must go to the Surro*607gate’s Court to reach the personalty and bring his action of ejectment to recover possession of the real estate.
The judgment appealed from should be affirmed, with costs.
All concurred.
Judgment affirmed, with costs.