(dissenting)-':
I concur in the opinion of Mr. Justice Ingraham, except as to the first question discussed by him, and as to that I dissent.
The intent of the testator, in the 23d clause of his will, is expressed in such a way as to preclude any discussion on that subject. He intended to set apart the securities therein specified for the benefit of Miss Stauffer during her life, and upon her death such securities or the proceeds derived from the sale of them were to -pass to her devisees, or, in the absence of a will, to her heirs. His language is: “ I direct my said executors and trustees to set apart $50,000 of first mortgage six per cent International and Great Northern Railroad Company bonds, and $50,000 of the first mortgage bonds of the Oregon .Short Line Railway Company, guaranteed by the Union Pacific Railway Company, as a special trust for the benefit of my friend, Miss Marie Celeste Stauffer, daughter of Isaac Stauffer, Esq., of New Orleans. The income of the said special trust shall be applied by the trustees thereof to the use of the said Marie Celeste Stauffer during her natural life, free from any interference or control of any husband she may have; and upon the decease of the said Marie Celeste Stauffer the trustees of the said special trust, shall pay over the principal of the said bonds or assign the same to the devisees or heirs of the said Marie Celeste Stauffer.”
Observe the language, the income of the said special trust is to be applied by the trustees to the use of Miss Stauffer during her life, and upon her death the trustees are to pay over the principal of the said bonds or to assign the same to the devisees or heirs.
The testator, having knowledge of the present value of these securities, and a- knowledge at least satisfactory to him as to their future value, desired that they should be held as a permanent investment for the benefit of the person whom he sought to make the object of his bounty without interference on the part of his trustees. Hence he made his own selection and sought, by the use of the. language employed, to preclude his trustees from interfering *401in any way with his purpose. And if there could be any doubt as to the testator’s intent, as expressed in this clause of his will, such doubt would be entirely removed when it is read in connection with the 29th clause, which is: “ The trustees of the said special trust are hereby authorized; from time to time, to change the investments hereby directed to be made for the use and benefit of specific persons; to sell the securities originally purchased for or set apart for such specific persons, and to purchase other securities in lieu thereof, except in the cases where the securities cure herein designated, and appropriated to a specific purpose.”
It is only where a will fails to express or to disclose the intention that the court is at liberty to resort to the rules which have been established by the decisions of the court for the purpose of ascertaining. that intention. (Matter of James, 146 N. Y. 79.) Here the intention is manifest — it is well expressed — and there is no authority conferred, if we give effect to that intention, upon the trustees to change the investments in the trust created for Miss Stauffer.
I am, therefore, of the opinion that the trial court was right in holding that, under the 23d clause of the' will, the trustees had no power or authority, either with or without the consent of ' the beneficiary, to sell the securities therein named for the purpose of changing the nature of the investment.
Judgment modified as directed in opinion, and as modified affirmed, with costs to all parties appearing to be paid out of the estate.