It may be that more learning was resorted to below, and in argument at our bar, than is applicable to the case. If a trust was created by the sixth clause of the will, then upon the death of the life beneficiary, Maria Ema Seward, the trustee .was under a- duty to account to her children, viz., this plaintiff and her brother, the defendant Seward. If there was no trust, and instead the said mother was the absolute owner of the said fund when she died, then the duty of the trustee to account is to the executor or administrator of the said mother, and this suit was properly dismissed.
*530; By the said-clause the testator gave oné-sixth of two-thirds of his estate to his said daughter Maria Ema, “ thé saíne also to be invested by my executors for-her benefit in such securities as they -may elect and. the interest, arising therefrom to be paid to her semi-annually, and in the event of the said Maria Ema dying without issue then 'the proceeds of said share" to be' divided among her brothers and sisters share and share alike”. Here is an express trust to receive and invest the fund, arid pay the income to -the said daughter of the-testator for life. This vested the legal title in the trustees (Morse v. Morse, 85 N. Y. 53; Ward v. Ward, 105 id. 68). ' They could not deal with the fund as directed except by having title arid possession thereof.- The trust cannot therefore be.whittled 'down to.a mere power in trust, to which title or possession is not necessary.
How it may betrue as was held below'that a bequest to. one, but if he die without children (as is the provision here), then over (say to liis.brothers and sisters, as is the,'case here), becomes ah absolute .one to him if he die leaving children, and that in such ease the ■children would not take through tlie will, but as next of kin, in case-'of the intestacy of their parent. But that case, sim/plicvter, is' not here. On the contrary, there is á-trust here, from which it fol.lows that at the death of the life beneficiary- the legal title was in the trustees, with, duty to account to the plaintiff and her brother, and turn the property over to them, instead of it belonging to the. administrator or executor of'the life beneficiary, as it would, if the legal title Were in her, and which would'make am obligation to account.to such administrator or executor, instead of to the plaintiff and her brother. ■' '
The judgment should be reversed.
Hirschberg, P. J., Hooker, -Rich and Miller, JJ., concurred.
Judgment reversed-and new trial granted, costs to abide the event.