.The principal question is whether or not a trust was created by the will of Frederick P. James.- It is observable that no distinct words imposing a trust in the language of the Revised Statutes are used, yet we think that the learned judge at the Special Term, was correct in holding that the intention of the testator, as derived from the whole will, the situation of his property and the relation of his heirs-at-law and. next of kin to him, was to create a .trust by necessary implication. It is apparent that the prime ■motive of the testator was to make ample provision for. the support and maintenance of his wife. She was the immediate object of his bounty. He had no father or mother living and no descendants. His collateral relatives are not shown to have had any particular .claim upon his bounty which was not in his mind subordinated to ¡the interest and protection of his wife. He gave one-half of the •whole income of his- property to her without restraint, deduction .or interference in any manner whatever. He gave her the use .and occupation of a city and of a country residence, together with the household furniture, plate, books and ornaments, horses .and carriages and implements and property of every description -pertaining to such residences, which were necessary to a proper ■maintenance thereof; and in fine, the testator appears to have had ¡the purpose clearly defined in his mind as disclosed by the will to •maintain the property, both real and personal, in the, hands and under the control and management of his wife, and that there -.should not be any division thereof among his next of kin or :heirs-at-law until her death. She was authorized to receive the ■rents, Issues and profits of the estate, and, as has already been pointed out, was personally entitled to retain for her own use and purposes one-half of the gross income. Under these circumstances, -.there was imparted into the will by necessary implication a duty upon the wife as executrix or trustee, to hold the property, collect ¡the income thereof, and properly to distribute, after paying all expenses, the other portion in accordance with the third clause of the will. It cannot now be successfully contended in this State, 'that -particular words are necessary to create a trust by will, so ¡long as the provisions thereof are of such a character as that, in ■order to carry them out, the ordinary powers and duties of a *99trustee, within- the Revised Statutes, are required. (Brewster v. Striker, 2 N. Y., 19; Vernon v. Vernon, 53 id., 351; Morse v. Morse, 85 id., 53.)
Another question raised by the appellants whether the persons answering to the description' of “■ legal heirs ” as used in the will take- per stirpes or per capita. The Special Term has, as we think properly, construed the will to mean that the collateral relatives should take, not- individually, but in families, or per stirpes. This result is mainly arrived at in this particular instance, for the reason that the testator has not named- any of his collateral relatives anywhere in the will, and refers to, them in this portion of it in the same way that they would be considered when applying to their rights the statute of descents of this State. (See Ferrer v. Pyne, 81 N. Y., 281; Kelley v. Viguas, 20 Rep., 103).
The trial judge, while denying to the plaintiff his prayer for partition -of the real estate, gives certain relief to him by way of a j udicial' construction of the will, and holds that he, with other parties to the suit, is entitled to share in the {noperty,- both real and personal, as a remainderman.' So far as the decision relates to the real estate, it is correct, but the plaintiff is not entitled to share in any of the personal property. Though a legal heir, he is not the next of kin within the statute of distributions which prohibits representation among collaterals after brothers and sisters children
The plaintiff, being á grandmephew, is not entitled to share in the personal property* unless the expression “ legal heirs’1 is to be construed broadly enough to include next of kin. A careful reading of the will leads irresistibly to the conclusion that the testator intended, as has been intimated above, that after the' full’ enjoyment by his •wife of his estate, 'at her death the property should go to his collateral relatives, as in case of intestacy. The expression in this clause of the will means, that the property, after the death of his wife, should be distributed according to law. It would do violence to the whole will and to the situation of the beneficiaries in their relationship to the testator, to say that he intended that the plaintiff should have greater rights or interest in his property than he would have had had there been no will. It is noticeable that the expression is not “ heirs ” alone, but “legal heirs,” thus importing into it a *100distinct intimation that the property should be distributed and descend according to the statute.
The only remaining question is whether or not the plaintiff, by bringing this action, has debarred himself from sharing in the property under the prohibitory clauses of the will. Although this position is taken in the printed briefs, yet we do not understand counsel to have insisted, upon the oral argument, that a declaration of this court to that effect should be made. Indeed, were it otherwise, we should feel constrained, under the- circumstances, to overrule it, not only upon the ground stated by the learned trial judge, namely, that the plaintiff is an infant, but upon the further ground that the action itself was not, in its scope and purpose, intended to defeat the known and established intention of the testator, but to obtain an adjudication as to what the intention was. This is not an interference with the legal rights of the executrix and trustee.
TIad the action been based upon an allegation of undue influence in procuring the will, or of the mental incapacity in the testator, or of duress, and the plaintiff had been defeated upon the issues, a different question would probably arise. Indeed, the fact that we feel constrained to differ from the trial judge in relation to the extent of the interest of the infant in the estate is sufficient to show that the action was not brought without a semblance of a just claim.
It follows, that the judgment should be affirmed, except as modified in the particular above mentioned, the costs to be paid out of the estate.
Van Brunt, P. J., concurred.Judgment modified as directed in opinion and affirmed as modified, costs to be paid out of the estate.