(dissenting.) This action is brought by the executors of the will of Jonathan Scoville, deceased, to obtain a determination of the court as to the validity of a certain trust created by the testator by an instrument in the form of a declaration of trust, and as to *529the effect and validity of the will of the testator in relation to such trust, and the property affected thereby. In January, 1887, the testator executed a paper in the following words:
“Be it remembered, that I, Jonathan Scoville. of the city of Buffalo, county of Erie, and state of New York, owner of four hundred shares of the capital stock of the New York and Harlem Railroad Company, of fifty dollars each, and evidenced by four certain certificates thereof, numbered 31,815, 31,816, 31,817, and 31,818, respectively, have and do hereby dedicate and set apart, from and after the date hereof, in whose possession soever the said several certificates of stock may come without actual transfer, all and singular, thg net income and dividends hereafter to gccrue and become due and receivable, from time to time, thereon, in trust to myself, or to any custodian in whose hands the said'certificates of stock may be deposited by me or by my order for the like purpose, and to and for the following uses and purposes, that is to say: The said net income or dividends of the said stock, as often as received, from time to time, shall be apportioned into ten equal parts, three of which parts shall be paid over to the use and benefit of Magdalena Rings, of Buffalo, N. Y.; three parts thereof shall be paid over to the use and benefit of Anna M. Rings, of the same place; two parts thereof shall be paid over to Henry C. Rings, of the same place, for and during his natural life; and two parts thereof shall be paid over to Minnie M. Rings, of the same place, for and during her natural life: provided, however, that in case of the decease or marriage of the said Magdalena Rings, or the decease of the said Anna M. Rings, whichever event shall first happen, then the portion so allotted to such person shall, from and after the happening of such event, be paid over to the use and benefit of the St. John’s Episcopal Church and Society of the town of Salisbury, state of Connecticut; and the portion allotted to the other shall after her decease (or marriage, if it be the said Magdalena) be paid over to the use and benefit of the Buffalo Orphan Asylum (Protestant) of the city of Buffalo; and upon the decease of the said Henry C. Rings, the portion so allotted to him shall thenceforth be paid to the use and benefit of the St. Vincent’s Female Asylum of the city of Buffalo; and, upon the decease of the said Minnie M. Rings, the portion so allotted to her shall be thereafter paid to the use and benefit of the Buffalo Hospital of the Sisters of Charity. And it is hereby expressly provided, from and out of the said income so apportioned to the said Magdalena and Anna M. Rings, they shall each bear and pay an equal portion of the taxes, repairs, and insurance of the premises this day leased to the beneficiaries herein named. For the purposes of this instrument, the said Magdalena Rings shall be considered the guardian of the property and rights of the said Henry 0. Rings and Minnie M. Rings, during minority, and, upon her marriage or decease, then the said Anna M. Rings, if surviving and unmarried, shall be deemed such guardian; otherwise, a guardian for the said minors shall be duly appointed. The right to cancel or otherwise modify this instrument at any and all times is hereby expressly reserved to me, notwithstanding -any provision herein contained.
“Witness my hand, this fifth day of January, A. I). 1887.
“Jonathan Scoville. ”
This, with the certificates of stock therein mentioned, was deposited in the Mercantile Safe-Deposit Company, of New York; and duplicates of the trust deed were deposited with the beneficaries therein named, and with one M. A. Whitney, of Buffalo. By the sixth article of the testator’s will, he provided as follows:
“Article Sixth. I have executed and deposited in the Mercantile Safe-Deposit Company of the city of New York, a certain deed of trust, which affects a- portion of my estate, which portion is more particularly described in a paper inclosed with such deed of trust. I direct my executors to carry out the provisions of this deed of trust, so far as they can, but, in case any unforeseen circumstances should prevent its performance and execution in full, then I direct that the sum of two thousand dollars per annum be paid by my executors to the beneficiaries named in such deed of trust, in the proportions mentioned in such deed of trust, and I direct that my executors set apart a sum sufficient to produce the net annual income of two thousand dollars, and to invest and reinvest the same, and out of the income fulfill my directions in that regard. Should any unforeseen circum*530stances prevent the carrying out of the terms of said deed of trust, then the securities mentioned and connected therewith are to be deemed a portion of my residuary estate, (but under no circumstances, in case it is deemed invalid, shall it affect this article.)”
By a codicil to the will, the plaintiffs above named were made executors, and it was also provided as follows:
“I make, constitute, and appoint the Farmers’ Loan and Trust Company of the city of New York, and Franklin D. Locke, of the city of Buffalo, trustees of each and all the trusts expressed in or created by article second, article third, article sixth, and article eleventh of my said will, as fully as if the said trust company and the said Franklin D. Locke were named as my donees' or legatees in trust in said articles; and I direct my executors to do such acts as shall be necessary to effectuate this intent. ”
By the eleventh article of the will, the above-named infant defendants Scoville are made residuary legatees in trust. In so far as the provisions of the deed of trust and the will are ineffectual to create a valid trust, the above-named infant defendants are entitled to share in the property covered thereby, as residuary legatees. The court decided adversely to the trust created by the trust deed and the will, and the beneficiaries mentioned therein have appealed to this court.
The questions presented are: (1) Whether the will, by the sixth article, either with or without the. aid of the deed of trust, creates a valid trust under the laws of this state; and (2) whether the deed of trust, by itself, creates a valid trust.
We think that article sixth of the will, standing alone, creates no valid trust, because it makes no disposition of the property mentioned of referred to therein, and is therefore valueless as a disposition of property. Nor do we think it receives any support, or can be upheld, by its reference to the deed of trust, because the latter cannot be regarded as incorporated'in, or as a part of, the will itself. This latter conclusion follows from the rule laid down in Booth v. Baptist Church, 126 N. Y. 215, 28 N. E. Rep. 238, wherein the court says:
“It is unquestionably the law of this state that an unattested paper, which is of a testamentary nature, cannot be taken as part of the will, even though referred to by that instrument. ”
Disregarding, then, altogether, the will, the question still remaining for our determination is as to whether the deed of trust, by itself, creates a valid trust. It is insisted that, when taken by itself, it offends against the statute of perpetuities, and that, at most, it is but an expression of a voluntary promise or intention to do something in the future, and therefore does not create a valid trust. The former, viz. that the deed of trust was void, because it unlawfully suspended the power of alienation for- more than two lives in being, was the view adopted by the learned trial judge. This conclusion, and the question relating to the insufficiency of the deed as a declaration of trust, may be considered together. In Barry v. Lambert, 98 N. Y. 306, it is said:
“ It is well settled that a trust in personal property may be created by paroi, and that no particular form of words is necessary for its creation; tint the words or acts relied on to effect that object should be unequivocal, and plainly imply that the party making them intended to divest himself of the interest in the property, and to hold it thereafter for the use and benefit of another. This is all that is required to create a trust, even as against the owner, and although he continues to retain possession of the property devoted to the trust. ”
*531Following in the wake of Martin v. Funk, 75 N. Y. 134, are Willis v. Smyth, 91 N. Y. 297; Mabie v. Bailey, 95 N. Y. 206; Barry v. Lambert, 98 N. Y. 300; Van Cott v. Prentice, 104 N. Y. 45, 10 N. E. Rep. 257; McPherson v. Rollins, 107 N. Y. 316, 14 N. E. Rep. 411. Applying the above rule to the deed of trust, we think that the instrument cannot be regarded as a mere expression of a voluntary promise or intention to do something in the future, but is an explicit declaration of a trust, which, under the authority, is all that is necessary to create the same. The power to revoke contained therein did not destroy it while it was unexercised, and Mr. Scoville died without exercising it. It is true that this declaration of trust does not deal with the principal, but with the income. But we do not regard this as material, because no valid distinction can be made, in respect to the creation of a trust, between the principal of a fund and the income of a fund, and we agree with the appellant in his view that—
“A person is clearly at liberty to create a trust with respect to the property itself, or to the income derived from it, or both, and a declaration of trust which is efficacious to create a trust as to the property itself is equally efficacious, if apt words are used, to create a trust as to the income. ” McArthur v. Gordon, 126 N. Y. 597, 27 N. E. Rep. 1033; Fagan v. Gurney, 14 N. Y. Wkly. Dig. 468; Rosenburg v. Rosenburg, 40 Hun, 91; Stone v. Hackett, 12 Gray, 227.
We think, therefore, that the instrument under consideration was a sufficient declaration to establish a trust, and a valid one, unless it contravenes some statute. This brings us to the consideration whether it did violate the statute against perpetuities. To decide this question, it is important, at the outset, to determine what Mr. Scoville intended to accomplish. There were 400 shares of stock, which were given to trustees, with directions to receive the income, and divide the same into 10 parts. Certain of these parts, so divided, he gave to certain persons during their respective lives, and to one until her marriage; and after the death (and in the one case, marriage) of each of these beneficiaries the portion so allotted to him or her was to go to a specific institution, for an unlimited period of time. It should be noticed, however, that on the marriage of one, and the death of the others, of the beneficiaries, the portion allotted to each beneficiary goes to a new beneficiary, and not to the survivors among the first beneficiaries named. As said in Vanderpoel v. Loew, 112 N. Y. 167, 19 N. E. Rep. 481:
“ The pivotal question in this case is the inquiry whether the testator meant to create one trust, enveloping the interests of all the beneficiaries, and holding them in its grasp until a final or ultimate division, or whether he intended to constitute five separate trusts, each to be measured by its own terms, and having its own several purposes to accomplish. ”
Applying this test, wé do not think there is here presented the case of the creation of a trust with reference to a single fund, the income of which is to be divided among four persons, or the survivor of them, as long as any of them is alive; but, as stated, upon the termination of the interest of each primary beneficiary, his portion goes to a new beneficiary, whose interest then, for the first time, begins. It is true that there is no final and absolute gift to any person of the corpus of the fund covered by the trust; but we think that one of two views must be held, either one of which is inconsistent with the conclusion reached by the *532learned trial judge,—that there was a suspension of the power of alienation with respect to the corpus or principal of the fund for more than two lives in being. Either the gift over is valid, and the institution designated is a new beneficiary, or, if invalid, then the parties who take the residuary estate under Mr. Scoville’s will succeed. In other words, upon the death (and in one case, marriage) of any of the first beneficiaries, the portion of the fund out, of which the income was derived must go to the new beneficiary, the institution designated, or the residuary legatees, and thus that portion be severed from the general fund. As was said in Savage v. Burnham, 17 N. Y. 561, at page 571:
“There is. indeed, but one fund which is embraced in a single trust, but the interests carved out of it are entirely distinct. The trust itself is necessarily divisible as often as the beneficial dispositions of the will call for the division and separation of any portion of the estate from the residue. ”
And in Schermerhorn v. Cotting, 131 N. Y. 60, 29 N. E. Rep. 980, the court say:
“Income and principal given in equal shares out of one fund, kept in solido for mere convenience of investment, may be severed, and independent trusts created for the several beneficiaries; and thus the shares and interests will be several, even though the fund remain undivided. ”
It will thus be seen that the circumstance of the fund being kept in solido is not controlling; and, where an instrument creating a trust is susceptible of two constructions, the decisions show that the court always inclines to that one which will sustain, rather than destroy, the trust, and to that end will construe the instrument as being several, in preference to regarding it as a single and indivisible trust. We think, therefore, that the appellant is right in the contention that, upon the death of each life beneficiary, the specific portion of the fund yielding the specific share of the income to which he or she was entitled is absolutely set free from any trust, and is at once subject to separation and distribution; that there is nothing in the declaration of trust requiring or permitting the fund to be kept entire during the four lives. In our view, therefore, the trusts created in favor of the Rings are not void, as offending against the statute of perpetuities.
The remaining question relates to the validity of the trust in favor of the institutions or secondary beneficiaries. As well stated by the appellant, one of two views may be taken. One is that the title to the shares of stock is vested in a trustee other than the institution to receive the income, and on the death of each life beneficiary to pay the share of the income which was payable to him or her, to the institution named during an unlimited period. If that be the true view, the trusts in favor of the institutions are invalid, as it is settled that a transfer of property to a party in trust to pay the income forever to a charitable institution, the institution not being the trustee, is invalid, as an unlawful suspension of the power of alienation. Adams v. Perry, 43 N. Y. 487; Cottman v. Grace, 112 N. Y. 299, 19 N. E. Rep. 839. The other view is that the gift over to each institution is a gift of a specific portion of the income direct to the institution, without the intervention of a'' trustee, in which case, the gift being unlimited as to time, it would operate as a gift of the principal. Earl v. Grim, 1 Johns. Ch. 494; *533Hatch v. Bassett, 52 N. Y. 359; Wells v. Wells, 88 N. Y. 331; Garret v. Rex, 6 Watts, 14; Van Rensselaer v. Dunkin’s Ex’rs, 24 Pa. St. 252; Greene v. Wilbur, 15 R. I. 251, 3 Atl. Rep. 4. We think, upon the construction to be given to the deed of trust, the first view should prevail, for the reason, as stated by the learned judge at special term, that—
“The principle that a general gift of the income of a fund, making no mention of the principal, is a gift of the fund itself, is not applicable. Hatch v. Bassett, 52 R. Y. 359. There is a mention of the principal, which is given to the trustees named, and I also think the income, subject to the duties, as to it, of division and payment. ”
To this little need be added; for, while the learned counsel for the appellants, with.much ingenuity, suggests that it would be a fair and reasonable, construction to say that each trust terminated with the life of the beneficiary, followed by general and unlimited gifts of income to the various institutions, it will be noticed that there are no words in the instrument divesting the trustees of the title to the fund, but, on the contrary, it provides for a continuation of the original trust, and the payment of the income only forever. Moreover, the language is not susceptible of the view that Mr. Scoville intended a general gift of the income to such institutions, but, by express language, he gave such income to trustees, who were to receive and divide the same in the manner provided in the instrument. As such a trust was invalid, we think the conclusion of the learned trial judge on this branch of. the case was correct.
Having, therefore, reached the conclusion that the provision in favor of the Rings, the primary beneficiaries, was valid, and that relating to the institutions or secondary beneficiaries invalid, the question remains as to what effect the latter will have, if any, upon the former. We think that, although the trusts created in favor of the institutions are invalid, those in favor of the Rings, being severable and legal, can stand. Underwood v. Curtis, 127 N. Y. 533, 28 N. E. Rep. 585. Upon the whole instrument, therefore, we are of opinion»that a valid trust was created in favor of one of the Rings until her marriage, and in favor of the others until their death, and'that upon the marriage of one or death of any of the beneficiaries a portion of the fund yielding the specific share of the income to which he or she was entitled- should be severed from the trust, and pass into the residuary estate, and that the judgment should be accordingly modified, without costs.