Whether this grant be covered by section 66 of the Real Property Law, which applies also to personalty, or whether it be a common-law proposition, there is a presumption that a tenancy in common in the income fund was created. (Matter of Kaupper, 141 App. Div. 54; affd., 201 N. Y. 534.)
The words “ during their joint lives, and thereafter for the support and maintenance of the survivor ” cannot be held to create a joint tenancy and a survivorship. The document does not say that the tenancy shall be joint, nor can such an implication be drawn from it. The expression “ joint lives ” was a convenient one, and one naturally selected to partially indicate the duration of the trust; that is, that it should exist while both the Bruffs were living, and upon the death of one should continue for the benefit of the survivor.
The document does not make provision for the support and maintenance of Charles and Ardelia according to their needs, aut sim; nor does it make the amounts distributable or the identity of the beneficiaries depend- upon the discretion or direction of any one. This distinguishes the case from Hamilton v. Drogo (241 -N. Y. 401). The document directs that the whole income be used and expended for the support and maintenance of Charles and Ardelia. This shows a clear intention to set apart and give to the two beneficiaries sufficient for the support and maintenance of both to the end of their lives, so far as the income from the fund would reach, whether or not either Charles or Ardelia needed any of the money for the purpose mentioned. This reasonable intention is not rendered improbable by the fact that Sarah L. Willis could not have foreseen that this particular fund would not be utilized for living expenses. The fact that that specific money was not so used does not change the character of the transfer nor the intention of the donor.
*79Ardelia was made custodian, as well as a beneficiary, of the income, but not the sole legal owner. This view is strengthened by the provision for paying Charles’ share directly to him in case of a separation of the spouses. The legal title, after each transfer of the income of the fund by the trustee, was in both Charles and Ardelia. Why in Ardelia alone? Surely not because of her custodial position. That was no more than a temporary arrangement, dependent upon the husband and wife continuing to five together.
Charles never asked for any of the fund for support and maintenance. Ardelia never used any of it for such a purpose. So they stand alike before the court. Failure to ask for or to use the fund for support and maintenance did not bar either from getting his (her) share. Reimbursement for money spent for support and maintenance by either Charles or Ardelia is permissible, as it was in Matter of Sewell (127 Misc. 202).
Taking into consideration all the attendant facts and circumstances mentioned in the prevailing opinion, including the contents of Ardelia Bruff’s will, I cannot see that any of the acts, omissions or conduct of either" of the Bruffs created any waiver or that they estop the representatives of either cestui que trust from claiming title to a part of this fund. The situation differs as to this from that found in Ireland v. Ireland (84 N. Y. 321) wherein discretion was conferred upon a trustee to “ apply ” moneys to the use and for the maintenance of beneficiaries. And barring such waiver and estoppel, however brought about, the character of the tenancy is controlled by the trust document.
Under the record which is before us, I think it should have been found that the total proceeds of the fund, during the time when Charles and Ardelia were both living, should be divided between their estates equally, or in proportion to the relative needs of each of them for support and maintenance while they lived together. (Additional proofs would be necessary as to “ relative needs.”) Charles received the total proceeds from the time of Ardelia’s death until his death, pursuant to the provisions of the trust document.
The presumption in favor of a tenancy in common has not been rebutted. If title to this income fund did not thus pass to these tenants, it did not pass at all; the donor’s intention was not carried out. In that case I can see no other possible solution than that — since none of the money was used for support and maintenance — it should all go back into the principal fund.
A new trial should be had, with costs to abide the event.
Judgment reversed on the law and facts, with costs, certain findings of fact and conclusions of law disapproved and reversed, and new findings made, and judgment directed for the defendant, dismissing the complaint, with costs.