(dissenting):
Ralph W. Maverick was a minor, not only at the time the will was made, but also at the time of the death of the testatrix and Sylvester W. Pike. The latter having died while in possession of the property without having disposed of it by his deed or will, the testatrix has declared, in clear, pointed language, absolutely free from ambiguity, her intention in those circumstances that Maverick should have some interest in the premises. Where, as here, the intention of the testatrix is not left in doubt, it is the duty of the court to so construe the will as to carry such intention into effect, if that may be done consistently with the provisions of our statutes. (Wager v. Wager, 96 N. Y. 167; Smith v. Bell, 6 Pet. 68.)
The trust attempted to be created in favor of Sylvester, being merely to hold the premises for him, was a naked trust, not authorized by the statute, and, therefore, it is void ; but in such case the *348interest intended for the beneficiary vests in him at once. (Real Prop. Law [Laws of 1896, chap. 547], §§ 51, 72, 73, 76, 79, 210; Helck v.Reinheimer, 105 N. Y. 475 ; Root v. Stuyvesant, 18 Wend. 278; Downing v. Marshall, 23 N. Y. 366-379; Fowler Real Prop. Law, 241, 242.) Appropriate words to give Sylvester an estate in fee are not found in the will, and it is by no means clear that such was the intent of the testatrix; but, as she has not expressly limited his interest to a life estate, the legal effect of her will may be to vest in him the fee. (Real Prop. Law, §§ 129, 133 ; Deegan v. Von Glahn, 75 Hun, 39; affd., sub. nom. Deegan v. Wade, 144 N. Y. 573; 4 Kent’s Com. 319, 536; Lalor Real Prop. 201, 202, 208, 209, 210.) The will, however, must not be construed as giving Sylvester the fee if that would nullify the provision limiting a future estate thereon, in certain contingencies, in favor of Ralph. If necessary to render the whole will operative, and especially the last clause over, which is to Ralph, it should be construed as giving a life estate only to Sylvester, with power to sell or devise, and with the remainder oyer for the benefit of Ralph. (Real Prop. Law, § 129; Smith v. Bell, supra Crozier v. Bray, 120 N. Y. 366-373.) If it was the intention of the testatrix to give Sylvester only a life estate, which as has been seen may be the effect of the will, with a power of disposition, the fee vested in him by statute absolutely as to creditors, purchasers and encumbrancers, and the contingent limitation over to Ralph was expressly authorized by statute, and as to Sylvester the fee is a defeasible estate and not an estate of inheritance. (Real Prop. Law, §§ 129, 132.) But if he took a fee the rule of construction is that it will not be curtailed or limited by a subsequent clause of the will unless that clearly appears to have been the intention of the testatrix, which is manifest in the case at bar. (Banzer v. Banzer, 156 N. Y. 429; Clay v. Wood, 153 id. 134.)
Here, the testatrix clearly intended that' the entire estate, both legal and equitable, should be divested in the event of Sylvester’s death without having conveyed or devised it; and such a limitation of a fee upon a fee though void for repugnancy at common law (Van Horne v. Campbell, 100 N. Y. 287) is.now'authorized and the common-law rule no longer obtains. (Real Prop: Law, §§ 40, 206 ; Fowler Real Prop. Law, 42, 170, 193, 359, 360; Greyston v. Clark, 41 Hun, 125; Leggett v. Firth, 53 id. 152; affd., 132 *349N. Y. 7; Terry v. Wiggins, 47 id. 512; Matter of Gardner, 140 id. 126, 127.)
It was, I think, intended by the enactment of the Revised Statutes to abolish all artificial or technical restraints of the common law with reference to the transfer of real property that were not expressly retained on the ground of public policy or expediency ; and that it was intended to alter the common-law rule that a fee or lesser estate could not be limited upon a fee appears from many provisions expressly providing for such limitation. (Real Prop. Law, §§ 22, 40, 42, 43, 48, 129, 130, 206; Fowler Real Prop. Law, 162; Lalor Real Prop. 62, 64, 65, 93, 94, 104.)
If there were greater adherence to the plain language of the statutes and less attention given to the common law our law with reference to the disposition of real property would be better understood, and there Would be less danger that the real intention of the testator would be defeated by an erroneous judicial construction of his will. It is unnecessary to decide whether Sylvester took a life estate or a fee for in either event the trusted took the remainder in trust for Ralph during his minority or for life. The trust for Ralph, though not expressed in the language of the statute, was unquestionably a valid trust to hold the premises and apply the rents and profits, at least, to his maintenance, education, and to fit him for some useful occupation at least during his minority. (Real Prop. Law, § 76, subd. 3; Kiah v. Grenier, 56 N. Y. 220, 225; Vernon v. Vernon, 53 id. 351; Bellinger v. Shafer, 2 Sandf. Ch. 293, 295; Donovan v. Van De Mark, 78 N. Y. 244; Hathaway v. Hathaway, 37 Hun, 265, 269.) In my opinion, it is clear that upon the death of Sylvester no interest descended to his heirs, but the entire legal estate vested immediately in the trustee for the purposes of the trust. (Real Prop. Law, § 80 ; Fisher v. Fields, 10 Johns. 495.)
This brings us to the consideration of other difficult questions. The defendant has fortified herself by conveyances from the heirs of the testatrix; and she claims that even if there were a valid trust for Ralph that it continued only during his minority, and that upon Ms attaining his majority the legal title reverted to the heirs of the testatrix who then became vested with both the legal and equitable title. If the trust was for Ralph’s life, and for that construction *350some support is found in the authorities (see Kiah v. Grenier, supra ; Crandall v. Fowler, 18 Wkly. Dig. 139), of course.it has not terminated, and. plaintiffs would be entitled to possession, and it would be unnecessary, to decide whether at Ralph’s death the title would vest in his heirs or devisees or would revert to the heirs of the testatrix. It is significant that the testatrix speaks of Ralph as a minor, and .1 am inclined to think that the trust was only for his minority, (Sterricker v. Dickinson, 9 Barb. 516; affd., see Id. 523, note.) The testatrix declares that in the event of the contingency the trustee shall hold the identical property “ in trust for the benefit ” of Ralph. The term “ heirs ” or other words of inheritance not being necessary to create'an estate in fee (Real Prop; Law, § 205), if there be no further provision in the will indicating an intent that Ralph shall only take an estate for his minority or during life he takes - the fee; so, also, in such case if - the further provisions be insufficient to create a valid trust to receive and apply the rents and profits — but doubtless they are — the fee vested in him at once. (Real Prop. Law, §§ 72, 76, subd. 3, 210 ; Crain v. Wright, 36 Hun, 74 ; S. C., 114 N. Y. 307; Richards v. Jones, 1 Ch., Div. [1898] 438.) The question then arises do the words of the devise, “ to be applied by said Trustee for the maintenance of said Ralph and for his education, and to fit him for some useful occupation,” following the words “for the benefit of my relative, RalphW. Maverick, now a minor,” cut down the fee that would otherwise be given by the words “ for the benefit of % ” If the devise had been directly to Ralph to have and to hold “ for his benefit and support,” the fee would vest in him, and if followed by the clause to be “ applied for his maintenance, education, and to fit him for some useful occupation,” such words would be insufficient to cut down the fee to an estate during minority or for life. The use of the word “ benefit” was entirely unnecessary unless it was intended thereby to devise the fee, and it is, therefore, significant. I think the proper .construction of this part of the will is the same as if the words “ the rents and profits ” preceded the words “ to be applied,” etc., for it was manifestly the intention that rents and profits only should be applied by the trustee for the purposes specified.
The same party may be both the beneficiary of a trust and the remainderman. (Chapl. Express Trusts & Powers, § 359.) The *351law favors that construction of a will which will prevent partial intestacy rather than one which will permit it. (Vernon v. Vernon, supra ; Provoost v. Calyer, 62 N. Y. 545, 550-552; Schult v. Moll, 132 id. 122, 127.)
There is no residuary devise. The testatrix manifestly intended that the entire estate should pass by her will, and I think Ralph took a vested remainder in fee and in possession at the termination of the trust. (Real Prop. Law, § 210; Stevenson v. Lesley, 70 N. Y. 512, 517; Embury v. Sheldon, 68 id. 227, 234, 235 ; Whitney v. Whitney, 63 Hun, 59-63, 78-81; 43 N. Y. St. Repr. 841-843, 855-857; Olmstead v. Olmstead, 4 N. Y. 56.)
My conclusion is, therefore, that the trust is terminated and that the fee is now vested absolutely in Ralph, in whose favor judgment should be awarded accordingly.
Judgment ordered for defendant, with costs.