By the Court—
Gilbert, J.By the first sentence of the will the testator gave all his estate, real and personal, to his trustees and executors therein named, and their heirs, on condition that they should dispose of it as thereinafter directed by the will. Next he made a formal devise to his wife of a portion of his real estate, subject as to one parcel to a power of sale with which he invested his executors. He then gives his wife an annuity for the maintenance and education of herself and her children, payable by his executors out of the *503rents of certain specified real estate, or, if they should be insufficient, from the interest of other property thereinafter mentioned. The other dispositions of the will are in the form of pecuniary bequests to his children and other relatives. The will contains no directions with respect to the residue of the testator’s property after the specific directions shall have been fulfilled.
The language of the gift to the executors, contained in the first clause, is sufficient to raise a trust in them (Perry on Trusts, § 112, et seq.), but under the provisions of the Revised Statutes, relative to uses and trusts, such trust is not valid as a trust of the real estate. But the trust is valid as a power in trust by virtue of the fifty-sixth and fifty-eighth sections of the statute aforesaid, and under the fifty-ninth section of the same statute the lands to which the trust relates descend to the persons otherwise entitled, subject to the execution of the trust as a power.
It was suggested on the argument that the legal estate in the testator’s property was vested in the executors and trustees named in the will, because the trusts in the will could not otherwise be performed. We are of opinion that all the objects mentioned in the will can be accomplished under a power. The general object of this power is the disposition of the estate to or for the benefit of the beneficiaries named in the will, according to the directions therein contained. It includes a power of sale, and a power to purchase the share of a portion of the real estate, which belonged to his brother and himself as tenants in common, at a specified price. It is not necessary to enumerate each particular object embraced within the power. It is sufficient to say, that there is no apparent necessity for holding that the executors must be vested with the legal estate, in order to carry out the objects of the will. In such a case the legal estate does not vest in them by implication. (Tucker v. Tucker, 1 Seld., 408; Manice v. Manice, 43 N. Y., 304.)
The trust as to the personal property is valid, .and such property remains vested in the executors charged with the *504trust declared in the will. Practically, therefore, the beneficiaries are quite as well protected as they would have been under a will more formally written. The real estate is vested in them according to their respective interests, subject only to a power, which can be exercised only for their benefit, and the persona] property is vested in the trustees upon a trust which gives them all the beneficial interest.
With respect to the residuum which may remain after the trustees shall have fulfilled the specific directions contained in the will, it will" result to the heirs or next of kin, as the case may be, in its original character (Perry on Trusts, § 152; Roper v. Radcliffe, 9 Mod., 171); for there is nothing in the will indicating an intention to benefit the trustees, and a declaration of trust as to part is considered sufficient evidence that the testator did not intend the trustees to take any beneficial interest, and that the creation of the trust was the sole object of the transaction.
We think the referee erred in deciding that the provisions of the will in favor of the widow were in lieu of her dower in the lands of the testator, and of her distributive share in his personal, estate after the payment of debts and legacies. The will contains nó expression to that effect, nor is her claim of dower and thirds inconsistent with the provisions for her benefit. The widow is entitled to retain her dower and all other benefits given her by the will, unless the retention of her dower operates to defeat some other disposition in the will. (Adsit v. Adsit, 2 J. C. R., 448; Sanford v. Jackson, 10 Paige, 266; Lewis v. Smith, 5 Seld., 502.) The provisions of the will must be such as to clearly indicate the intention of the testator, that the widow shall be put to her election. The presumption is, that the testator intended that she should have his gifts under the will in addition to her dower, unless the contrary is manifest from the will. (Dodge v. Dodge, 31 Barb., 413.) We are unable to discover anything indicating an intention of the testator that the widow should be put to her election. On the contrary, it has been satisfactorily shown by the plaintiff’s counsel, in a table *505presented by him, that allowing the widow her dower and thirds is not repugnant to or inconsistent with any other provision contained in the will.
The- devise, to the widow, of the house in which the testator resided, and the eight lots adjoining, should'be construed as a gift of a life estate only; for although words of inheritance are no longer requisite to create an estate in fee, yet the statute which changed the rule of the common law on this subject is, by its terms, rendered inoperative where the intent to pass a less estate or interest shall appear by express terms or be necessarily implied in the terms of the devise (1 R. S., 748, § 1); and we think such intent is abundantly manifested by the provision which directs the executors to invest the proceeds of the sale, that the will empowers them to make, for the benefit of the widow during her life.
We are unable to. discover any authority for the executors to demand the payment to them of the amount due the estate from the surviving partners, and certainly the court cannot in this suit make any decree requiring such surviving partners to give security for the payment of, or to pay, the debt, for one of them is not a party to the suit. The will in effect directs that the surviving partners may withold payment of that debt for five years, paying in the meantime interest at seven per cent. This is an effectual bar to a suit for the collection of the demand, and of course affords protection to the executors against any liability for not collecting it.
The judgment below must be modified in accordance with this opinion. The several parties to this appeal are entitled to their costs, to be paid by the executors out of the fund in their hands.
Judgment accordingly.