The first question to be determined in this case is whether the legacy given to the defendant Miller by the will of his sister is liable to be appropriated by his creditors to the payment of his debts.
The plaintiff’s counsel claims that the trust which was evidently attempted to be created by such will is void, because no beneficiary *554is named therein except Miller himself; and that, because such trust is void, Miller took an absolute estate in the whole fund by reason of the provisions of section 129 of the Real Property Law (Laws of 1896, chap. 547) (substituted for 1 R. S. 732, § 81).
The cases have been decided upon this theory, and the judgments appealed from have seized upon the whole of such legacy and applied it to the payment of Miller’s debts.
The plaintiff argues that the word “family” is so indefinite1 that it designates no one, and that hence Miller himself is the trustee and sole beneficiary named. But such word has been frequently used in wills, and the instances are many where gifts by way of bequest or devise to the “ family ” have been recognized and enforced. Generally it derives its particular signification from the context of the will. In Spencer v. Spencer (11 Paige, 160) the chancellor says : “ The word family may mean children, wife and children, blood relatives or the members of the domestic circle, according to the connection in which the word is used.” In Redfield on the Law of Wills (Vol. 2, p. 394) the rule is given as follows: “6 It should seem that a gift to the family, either of the testator himself or of any other person, will not be held to be void for uncertainty, unless there is something special creating that uncertainty.’ ‘ The subject-matter and the context of the will are to be taken into account,’ and the bequest upheld, if it can fairly be made out what the testator intended by the word family.” It is there further said : “ It has often been held that a bequest to one and his family, he having children at that time, was intended for such person and his children ; and that such children as were living at the decease of the testator were entitled to take.” It has also been held that abequest to one’s wife towards the support of her family, gave the children such an interest in the estate devised as entitled them to maintain a bill in their own names to protect such interest. ( Woods v. Woods, 1 Mylne & C. 401. See, also, Beales v. Crisford, 13 Sim. 592; Schouler Wills, § 537; 2 Williams Exrs. [7th Am. ed.] 404 [9th Eng. ed.] 989; Bates v. Dewson, 128 Mass. 334; 7 Am. & Eng. Ency. of Law, 807.)
In the case before us, at the time of the testatrix’s death, Miller’s wife was dead, and the two defendants, Esther and Louise, were his only children. Within the authorities above cited, there is no diffl*555culty in determining that such children were the persons intended by the word “ family ” in the bequest above quoted. They as well as Miller were beneficiaries in the trust thereby created, and hence the trust does not fail for the reason assigned by plaintiff’s counsel. ( Woodward v. James, 115 N. Y. 346, 357. See, also, Losey v. Stanley, 147 id. 568.)
We must conclude, then, that Miller held all the property he received under the will in trust, to use the same for the support of himself and his two daughters, during his life, and that upon his death whatever there should remain thereof unexpended is given over to the daughters or to the survivor of them. Such a trust, and the bequest over to the daughters, was valid. (Roosevelt v. Roosevelt, 6 Hun, 31; affd., 64 N. Y. 651.) And, inasmuch as Miller had no interest personally in the fund, or in the income therefrom, except for his support, he had no interest which his creditors could reach (Code, § 1879 ; Bramhall v. Ferris, 14 N. Y. 41), and his assignment thereof to his daughters cannot be questioned by them.
But even if Miller did not receive the fund in trust, it is clear that section 129 of the Real Property Law does not apply. Under the provisions of that section, the estate is turned into a fee only “ where an absolute power of disposition ” not accompanied by any trust is given. Even if no trust is created, no “absolute power of disposition ” is given to Miller. He had the right to use it for one purpose. only, viz., the support of himself and family. The case of Rose v. Hatch, (125 N. Y. 427-433) is very similar in its facts, and entirely analogous in principle. Under the authority of that case, Miller’s creditors could not reach any part of the fund bequeathed to him.
Applying this conclusion to the two cases before us, we find the situation to be as follows :
The §860 of bank stock, which is the only subject-matter of the first action,, was received by Miller “ in specie ” under the provisions of such will. He had up to the date of the transfer used only the-income therefrom. The principal he had kept intact, and if he had then died his daughters, and not his creditors, would have been entitled to the whole of it. By such transfer, Miller determines that he will never need any of it for his support and passes the control of' the whole over to his daughters. So far as his right to *556expend any part of it is concerned, I can see no reason why, as against his creditors, he may not abandon it to those who are ultimately to take such as he does not use. Such right on his part is not a right that his creditors could seize or utilize, and hence they can no more complain if he gives up to his daughters his right to expend it, than they could if he should die without having done so. It is not anything that his creditors can use, and hence they can have no right to claim any part of it. So far then as that action is concerned, the plaintiff had no right to reach the property affected by it, and the judgment should, therefore, be reversed, and the complaint dismissed, with costs.
In the second action it appears that Miller used $5,982.17 of the fund he derived under such bequest in erecting the building upon the premises which he conveyed to his daughter Esther. The judgment in that action sets that conveyance aside as fraudulent, and directs the receiver to sell the property and apply the proceeds to the satisfaction of the plaintiff’s debt, thereby taking such "item of $5,982.17 from the daughters and appropriating it entirely to the benefit of Miller and his creditors. Miller himself could not, by so using the fund, deprive his daughters of their interest in it. It was not an appropriation of the principal to his support, but was rather a method of investing it and keeping it intact; and had it remained in that condition until his death, I see no reason why his daughters would not have had an equity in the premises to. that extent superior to the right of any of his- creditors. For the reasons above stated, it was property to which the creditors could not resort; and hence as against Miller’s children, or either of them, the plaintiff is not entitled to have it sold in this action. For that reason alone the judgment must be reversed and a new trial granted.
These considerations lead to the following conclusions: In action No. 1 the judgment is reversed and the complaint dismissed, with costs. In action No. 2 the judgment is reversed and a new trial granted, costs to abide the event.
All concurred, except Putnam, J., dissenting.
So ordered.