In this case, several questions have been discussed, which it is unnecessary to consider, as a decision of one ends the case, viz., was the court of probate authorized to approve the distribution in question? By statute, (tit. 32. sect. 29.) courts of probate are empowered and directed to make a just division or distribution of all the estate, both real and personal, of any person dying intestate, after deducting all the expenses and charges payable out of the same. But by sect. 35. their power is limited respecting testate estates: where real estate given by will is ordered, by the testator, to be divided among two or more devisees, and no person is appointed to *412divide the same, or the person appointed neglects or refuses to make the division, or dies before he has made it, the court, of probate before which the will is proved and approved, shall appoint three freeholders, as the law provides for the dividing of intestate estates, to make division thereof according to the will, who shall make return of their doings to such court. This statute, certainly, gives courts of probate no authority to interfere with the doings of distributors appointed by testators, except in certain specified cases, of which this is not one; and such courts have no common law jurisdiction. Not one of the incidents giving the court of probate jurisdiction has occurred; but it is implicitly excluded. Real estate is given by will; and is ordered, by the testator, to be divided. Two persons are appointed to divide the same. They are both alive, and have not neglected or refused to make the division. Whether they have done right or wrong, or whether the division be according to the will or not, are not questions of probate cognizance, and therefore, not within the appellate jurisdiction of the superior court. If the distributors have done their duty, the distribution is made according to the will: if not, it remains to be done. The decree of the court of probate has not affected the validity of the distribution, if any it had. All the proceedings in that court were coram non judice; and, “it is an acknowledged principle,” says an eminent judge, “of every court in the world, that not only the decisions, but every thing done under judicial process of a court not having jurisdiction, are, ipso facto, void.” Martin v. Hunter’s lessee, 1 Wheat. 364. per Johnson, J.
The foregoing is my individual opinion, from which I do not understand my brethren to dissent. But to prevent litigation, it is thought expedient to express an opinion upon a question on the merits, which has been fully argued and considered by the Court, viz. what estate did J. W. Strong take under the will of his father? [Here the judge read the material clauses of the will.] By this devise, the sons of the testator took no beneficial interest, but were merely constituted trustees for the benefit of their children. This is apparent, first, from the words of the will, and secondly, from the object of the testator.
The sons were made residuary legatees and devisees; each to receive, occupy and improve, in severalty, the fourth part of a fund composed of the residuum arid advances made to them, *413not for themselves, but for the support and maintenance of their respective families, and the education of their respective children, at the pleasure of the executors. This constituted the sons trustees of a tenancy at the will of third persons, of an estate devised to their children in fee, who thereby became cestui que trusts. No particular form of words is necessary to create a trust. Whenever any person having a right to command, gives property and points out the object—the property and the way in which it shall go—this creates a trust, unless he shows clearly, that his desire expressed is to be controuled by the party, and that he shall have an option to defeat it. 2 Swifts Dig. 107. Malim v. Keighley, 2 Ves. jun. 333, 335.
The object of the testator was to provide for his grand-children, but not for his sons. Had he intended this estate for them, it was easy to have said so. But it might, and probably would, have been a gift to their creditors, who had no claim on him, and who might, and probably would, have wrested the estate from the objects of his bounty, and defeated his intention to provide for their maintenance and education. To avoid such a catastrophe, he authorized his executors to decide when the occupations of his sons ought to cease. This was inconsistent with a beneficial devise to them, but in accordance with a gift in trust. He had made them trustees, and confided in them as such; but if his executors found his confidence misplaced, he authorized them to terminate it.
As the executors have distributed the aggregate fund to the sons, in their own right, though they were merely trustees, the court of probate erred in accepting and approving the distribution.
The decree ought to be reversed.
Hosmer, Ch. J. and Daggett, Js. were of the same opinion. Williams, J. gave no opinion; and Bissell, J. was absent.Decree of probate to be disaffirmed.