The plaintiffs in this action on July 11, 1901, recovered a judgment against the defendant Charles E.' Cameron for $561.02, and *93seek to collect the same from a certain fund in the custody of the defendant Albert L. Cameron, and which it is claimed he holds as trustee for said Charles E. Cameron under the will of Jane M. Cameron, deceased, who was his wife. At the time of her death the fund consisted entirely of personal property, and the provisions of the will under which such trust is claimed are as follows:
“ First. I hereby give, devise and bequeath all of my estate, both real and personal, of every name, kind and nature whatsoever, in trust for the uses and purposes hereinafter named to Albert L. Cameron, of Smithfield, N. Y., my executor hereinafter named.
“/Second. I hereby will and direct the said Albert L. Cameron to pay over to my husband, Charles E. Cameron, semi-annually, all of the income, rents, issues and profits of my said estate, and so much of said principal sum as may be necessary for his support and maintenance for and during the term of his natural life.
“ Third. I further will and direct that whenever the said Charles E. Cameron shall desire to engage in any business or enterprise, and shall give notice — thus — to the said Albert L. Cameron, that he desires the whole or any part of such principal sum — for such purpose, it is my will and in that case I hereby direct the =said Albert Cameron to pay over and deliver to the said Charles E. Cameron the amount so desired by him out of the principal sum so given to him in trust by the first clause hereof.”
The will further provided that all of such trust fund that remained in the hands of the trustee after tlie death of her said husband should be paid over by him to certain residuary legatees therein named.
The 1st and 2d clauses above quoted, it may be conceded, constitute a valid trust. Under subdivision 3 of section 76 of the Real Property Law (Laws of 1896, chap. 547) such a trust is allowed as to real estate, except perhaps as to the provision) allowing a portion of the principal sum to be semi-annually applied, in the discretion of the trustee, to said Cameron’s support, and as to personal property such a provision is possibly a valid disposition of the same.The appellant, however, claims that the effect of .the 3d clause is to vitiate the whole bequest and render the attempted trust invalid.
If the subject-matter of the trust had been real estate, and such 3d clause had provided that, whenever said Charles E. Cameron desired, *94the said trustee should pay over to him the whole of said trust fund, it would have rendered the trust an invalid- one under the rule stated in Wendt v. Walsh (164 N. Y. 164). The-title to the whole property, under the provisions of- sections 72, .73 and 129 of the Real Property Law, would then have vested in Charles E. Cameron instead of in the trustee. The question arises whether; tinder the language actually used iti su,ch.3d clause, the same result should not follow. Under section 73, if the intent of the bequest was that the-possession, as well as the profits of the fund was to vest' in Charles E. Cameron, then it should have been made directly to him, and no estate whatever vested in the trustee. So. by section 72, if Charles E. Cameron was entitled "to the possession as well as the profits of the-fund bequeathed, he must be deemed to have the legal- estate therein to the same extent as the beneficial, interest given him thereby. - ' -
Row, he was evidently entitled to the possession of sudh fund if he demanded it for-the purpose of engaging “in any business or enterprise; ” and it seems to me that such a purpose is so broad and so personal to the beneficiary that it is equivalent to a direction that he is entitled to it whenever he asks for it. The ténn- of the trust seems to depend entirely upon the will of the beneficiary. He may end the trust, and take -possession absolutely whenever he desires to; that is, whenever he n otifies the trustee that he wishes the'fund to use in his business. And having the right to ask at any time, the situation seems to be practically like that presented in Wendt v. Walsh (supra).
But the property disposed of by the will was personal property only, and the further question is presented whether a similar principle should be applied to it.
. Had the bequest been such as is contained in the 1st and '2d clauses only, under the provisions of section 3 of thé Personal Property Law (Laws of 1897, chap. 417), so much of the income as was néeded-for the support of the beneficiary and his family could hot "be reached by his creditors, but the surplus might' be so reached. (See, also, Tolles v. Wood, 99 N. Y. 616; Hallett v. Thompson, 5 Paige, 583; Wetmore v. Truslow, 51 N. Y. 338; Williams v. Thorn, 70 id. 270; Schenck v. Barnes, 156 id. 316, 320.)
But the 3d clause so completely changes the -character of the *95trust that, as suggested above, it substantially becomes a mere naked trust, and as provided in such 3d section, it becomes such an “ other-trust ” as may be transferred by the beneficiary, and hence is applicable to the claims of his creditors. (Williams v. Thorn, 70 N. Y. 270, 278.) It is not protected by the provisions of such 3d section and, in analogy to £he rule laid down in the Real Property Law,the title should be deemed to vest in the beneficiary and not in the-trustee. In Hallett v. Thompson (supra, 587) it is said: “ It is-very obvious from the terms in which the bequest was- made, that the object of the testatrix was not to secure to the legatee a support- and maintenance out of the interest, or income, of a trust fund, which should be inalienable by the cestui que trust, in analogy to the-provision before referred to in relation to a similar^ trust to receive the rents of real estate for the same object. On the contrary, it was an attempt to give to the legatee an absolute and uncontrollable interest in personal estate, and at the same time to prevent its being subject to the usual incidents of such an absolute right to property, ■ so far as the rights of creditors are concerned. This cannot be-done, consistently with public policy, or the settled rules of law.”' Hence I conclude that the property in question belonged to the-beneficiary and was liable for his debts.
It is further urged that the residuary legatees named in such will* were necessary parties, and that not having been joined in this action,, it cannot be maintained by the plaintiff.
Although that defense is set up in the answer, there is no evidence in the case that either of such legatees was living at the time-of the commencement of this action," and the trial judge has made no finding of fact nor of law upon that question. He has placed his decision upon the sole ground that the beneficiary had no property in the fund sought to be reached.
A defense that necessary parties are not joined is in the nature of a plea in abatement, and, like all issues tendered, it must be proven. We cannot now hold that the complaint ought to have been dismissed because the residuary legatees named in the will were not made parties, when we do not know that either of them was living when the action was commenced. Concede that no judgment should be rendered against the validity of this trust unless such residuary legatees, or their successors, are before the court, nevertheless, the *96fact that they were not made parties cannot be invoked upon this appeal to sustain the decision made by the trial judge, which dismisses this complaint upon the merits.-
The judgment should be reversed, with costs, and a new trial granted, with costs to the appellants to abide the event, which will give to the trustee an opportunity to have such residuary legatees brought in and such a judgment rendered as will be binding upon them and a' protection to himself.
All concurred, except Houghton, J., dissenting.
Judgment reversed and new trial granted, with costs to appellants to abide event.