The question presented by this appeal is solved by a determination as to whether a trust is created of the property devised .and bequeathed by the testator, in which event title to such property became vested in the trustees, or whether a power in trust is alone created..
• The learned court, at Special Term reached the conclusion that the will created a trust estate and vested title in the property sought to be recovered in the trustees, and that the plaintiffs were, therefore, without standing to maintain this action. The appellants earnestly insist that this conclusion is wrong; that by the terms of the- will á power in trust only was given, and that the title to the property became immediately vested in the legatees under the will upon the death of the- testator. Section 55 of the Statute of Uses and Trusts provides for the creation of express trusts, subdivision 3 of which is as follows ;■ “ 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, subject to the rules prescribed in the first article of this title.” And by section 60 it is provided: “ Every express trust, valid, as such, in its creation, except as herein Otherwise provided, shall vest the whole estate in the trustees, in law and in equity, subject only to the execution of the trust. The persons for whose benefit the trust is created shall take no estate or interest in the lands, but may enforce the performance, of the trust in equity.” Section 58 provides: “ Where an express trust shall be created, for any purpose not enumerated, in the preceding sections, no estate shall vest in the trustees;: but the trust, if directing or authorizing the performance of any act which may be lawfully .performed under a power, shall be valid as a power in trust.” Section 59 provides:: “ In every case where the trust shall be valid as a power the lands to which the trust relates- shall remain in or descend to the persons otherwise entitled, subject to the execution of the trust as, a- power.” (1 R. S. [Edm. ed.] 678, 679.) These provisions of the Revised Statutes-were carried into, the Real Property. Law without change. (Laws of 1896, chap. 547, §§ 76, 79, 80.)
*25The language of the will gives to the executors of the testator, or the survivor of them and their successors, the property of the testator, and directs that in case any of the children, or the issue of a deceased child, shall at the time of the testator’s death be minors under the-age of twenty-one years, the executors are to “ hold and invest the-share of each of such minor or minors, and to receive and collect the interest and income arising therefrom and to apply the same-toward his, her or their education and support until each respectively shall- reach the age of twenty-one years.” This language is clear, unequivocal, unambiguous and in terms it creates an express trust, to receive rents, issues and profits of the property devised and apply-the same to the use of the minors. This brings it within the terms of the statute and thereby an express trust is created. The rule as to personal property is the same as to real property. (1 R. S. 773,. §§ 1, 2, re-enacted in Pers. Prop. Law [Laws of 1897, chap. 417], § 2.)
It has been held in numerous authorities that as the title to the property bequeathed was in the trustees, they alone have power to maintain an action to protect and defend the same. The only issue in such case is the one which arises between the trustee aiid the-party who has impaired the fund, or converted the trust property, or has wrongfully procured the same. Under such circumstances the beneficiaries of the trust estate are not necessary nor proper parties. (Matter of Estate of Straut, 126 N. Y. 201; Wetmore v. Porter, 92 id. 76.) The defendants when they received the shares of stock were not purchasers for value of the same and did not become l)ona fide holders thereof. They had notice of the source from whence it came and were, therefore, chargeable with notice of the trust, the powers of the trustees to deal with the trust property, and in legal effect they became bound by the terms of the trust. ( Wetmore v. Porter, supra.) This fact, however, did not raise a cause of action in favor of these plaintiffs against the defendants. It simply showed an existing condition upon which might be based a cause of action in favor of the person who held title to the trust property. In such case if the trustees do not bring action it is incumbent that a demand be made upon them so to" do, and if the trustees refuse to enforce the right of action, the cestui que trustent, by proper averments, may maintain ■ an action to enforce their rights under the trust, making the trustees parties defendant *26in such action. (Western Railroad Co. v. Nolan, 48 N. Y. 513.) Upon a proper application, doubtless, the court would have the power to .appoint a trustee, when necessary, to bring an action to protect or recover the trust property or its value when it has been wrongfully misappropriated. The facts of the present case are without dispute; as the will itself created a trust estate, the title to the'property bequeathed thereunder became vested in the trustees,they transferred title to the same during the existence of the trust, in consequence- of which the plaintiffs have no standing to maintain this action. The right to maintain it rests solely upon the wrong done to the estate, and this must be enforced in some one of the methods already pointed out.
• The cases relied upon by the appellants in support of their contention are all without application. Therein, the questions arose upon a construction of the instruments with the result that they ■were held not to create a trust, but only a power in trust. It was recognized in Onondaga Trust & Deposit Co. v. Price (87 N. Y. 542) that a power might be given to executors to collect and pay over dividends upon stock without vesting in them title thereto, and that there was no inconsistency between the creation of such a power in the executors and the vesting of title in the beneficiaries, but no case of which we are aware has gone so far as to hold that where the devise is to the executors or trustees, with directions, to hold the property, receive and collect moneys and invest the same for the benefit of a life or for a shorter time, it is anything else than the creation of a. trust.- That 'is this case.
It follows, therefore, that the court below made correct disposition of the main question. In awarding judgment, however, the complaint has been dismissed upon the merits. This was improper, and the judgment appealed from should, therefore, be modified by striking out the words “ upon the merits,” and, as so modified, the judgment should be affirmed, without costs to either party in this court.
Van Bbunt, P. J., Ingraham, McLaughlin and Laughlin, JJ., concurred.
• Judgment modified as directed in opinion, and as modified affirmed,, without costs to either party.