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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 324 The testator not having declared in express terms that the provisions made by his will for his widow are given in lieu of dower, she is not put to her election *Page 326 unless the devises of the will "be so repugnant to the claim of dower, that they cannot stand together." (Lewis v. Smith,9 N Y, 502; Bull v. Church, 2 Denio, 430; Jackson v.Churchill, 7 Cow., 287; Savage v. Burnham, 17 N.Y., 562.) This rule is a familiar one, and needs no further citation of authority.
In this case the provisions made by the will and codicil for the widow are as follows: 1st. The will gives her all the household furniture and jewelry of every kind in use by her and the testator, or either of them. 2d. One-third of the net income of all the real estate belonging to the testator, after payment of all taxes, assessments and interest due thereon, to commence to be paid to her six months after the testator's decease, and to be paid to her every six months thereafter, during her life. The codicil adds, "a suitable provision in money," "to be paid to her during the first six months, till the payment of her provisions under the will shall commence," and the use during her natural life of the apartments in the house No. 615, Fourth street, New York, as occupied by her and her husband, as a residence at the date of the codicil, with the election to have such other suitable residence in any other house belonging to him at the time of his decease that she might prefer.
After making these provisions the will disposes of all the "rest, residue and remainder of the estate," by directing in substance that it be divided equally among his surviving children and the children of his deceased children, if any there should be, six months after the death of his widow.
The will then nominates executors, and clothes them "with full power and authority to carry out all the provisions of the will," and if they deem it necessary or proper to a fair division of the property among the parties entitled thereto, to sell either at public or private sale the personal and real estate, or any portion thereof, and execute deeds thereof, and to divide the proceeds as thereinbefore directed; but no sale to be made till six months subsequent to the death of the testator and his wife. It also clothes the executors, "the survivor or survivors of them, with full power and authority to *Page 327 rent, lease, repair and insure any portion of the estate during any period of time the same may remain unsold or undivided."
In Savage v. Bunham (17 N.Y., 561), the testator devised and bequeathed all of his estate, real and personal, to trustees; the real estate upon trust to sell after the death of his wife. The will provided that during her life, the widow should "receive and take to her own use one-third part of the clear yearly rents and profits of the real estate, and that the residue of the clear yearly rents and profits should be deemed a part of the personal estate, and subject to the dispositions of the will concerning the personal estate."
The entire estate with all its income, except the one-third of the rents and profits of the land, was given (through the trusts) to the testator's children and the children of his daughters. It was held that a claim of dower could not stand consistently with these provisions, and that the widow was put to her election.
Upon the authority of that case, if the will in question creates a trust and vests the entire legal estate in the trustees, the provision made for the widow is inconsistent with the right of dower, and she was bound to elect. In that case her claim of dower, if allowed, would inevitably defeat the scheme of the will, for it would prevent the trustees from holding the legal title of the whole estate, and receiving the entire rents and profits for the purpose of paying taxes, assessments, interest, repairs and insurance, and ascertaining the net income, of which one-third is to be paid to the widow, and the residue ultimately to the other beneficiaries.
The first question, then, is, are the executors, under this will, made trustees of an express trust? The word trust, or trustee, is not used in the will, but that is only a circumstance to be noted in considering the question. "It is by no means necessary that the donee should be expressly directed to hold the property to certain uses or in trust, or as a trustee. * * It is one of the fixed rules of equitable construction, that there is no magic in particular words; and any expressions that show unequivocally the intention of the parties to create *Page 328 a trust will have that effect. It was said by Lord ELDON, that the word `trust' not being made use of is a circumstance to be alluded to, but nothing more; and if the whole frame of the will creates a trust, the law is the same though the word trust is not used." (Hill on Trustees, 3d Am. ed., 99; Orig. ed., 65, and cases there cited."
We are in this case to determine the question by the authority conferred and the duties imposed. The executors are clothed "with full power and authority to rent, lease, repair and insure" the estate "during any period of the time it shall remain unsold and undivided." That period is, at all events, to last until six months after the decease of the widow. They are also in general language clothed "with full power and authority to carry out allthe provisions of this will." It is apparent that the "net income of all the real estate" is to be ascertained by some person or persons once in six months during the life of the widow, "after all taxes, assessments and interest due thereon are paid." One-third of this net income is to be paid to the widow. By whom is this duty to be performed? It is clearly impracticable for the various tenants of the estate to perform it; neither collectively nor individually have they the means of determining the facts upon which the net income is ascertained, and it would be extremely embarrassing so to frame leases that each tenant should be subject to pay to the widow an amount of his rent that should discharge the proportion his rent bore to the net income of the whole estate, after payment of all taxes, assessments and interest due, on the whole. Collating the power to rent, lease, repair and insure, with the duty that rests somewhere to pay all taxes, assessments and interest, and then to pay to the widow one-third of the net income after such payment, there seems to be no embarrassment in determining where the duty rests. To my mind it is apparent that the scheme of this will requires that the whole income, rents and profits of the real estate shall be received by the executors until the sale and division provided for; and that they are the persons on whom the duty to pay one-third of the net income to the widow is imposed. They are to make *Page 329 the ultimate division, and consequently to retain for that purpose the income not paid semi-annually to the widow. The rents and profits of all the real estate are given to them for several purposes: 1. To keep down taxes, assessments and interest by paying them; 2. To ascertain the "net income" by deducting from the gross receipts the amount paid for those purposes; 3. To pay one-third of the net income thus ascertained to the widow every six months; 4. To repair and insure the premises out of the residue; and, 5. To retain the balance for division, and finally divide it among the daughters or their children after the decease of the widow. The imposition of these various duties by the will make the acting executors trustees for their performance to the same extent as though declared to be so by the most explicit language. The authority to sell the real estate and execute deeds thereof, as given by the will, standing by itself, would confer nothing but a power; but, coupled as it is with the various provisions for leasing, repairing and insuring, with the obligation to give to the widow a residence as she may elect, in any of the houses of the testator, it goes far to show that it was the testator's intention to vest the fee of the estate in the trustees. But however that may be, it is well settled that trustees take the legal estate whenever they are clothed with the authority which the foregoing construction of the will gives to the executors in this case.
"If land be devised to three persons and their heirs, in trust, to permit A. to receive the net profits for her life for her own use, and after her death to permit B. to receive the net profits for her life, c., it has been held that the legal estate is in the trustees, for that they are to receive the rents and thereout pay the land tax and other charges on the estate, and hand over the net rents only to the tenant for life." (Lewin on Trusts, p. 248; Baker v. Greenwood, 4 Mees. Wels., 421;White v. Parker, 1 Bing. N.C., 573.)
In White v. Parker, the trustees were to permit the testator's wife and daughters to receive the clear rents of three parts and his son the clear rent of one part — the trustees to pay all outgoings, to repair and let the premises. It was *Page 330 held that the legal estate vested in the trustees. In the note to 2 Wm. Saunders, 11, the rule is thus laid down: "Where something is to be done by the trustees which makes it necessary for them to have the legal estate, such as payment of the rents and profits to another's separate use, or of the debts of the testator, or to pay rates and taxes, and keep the premises in repair, the legal estate is vested in them, and the grantee has only a trust estate.
In Birmingham v. Kerivan (2 Schoales Lefroy, 444), Lord REDESDALE said that a direction to keep a house in repair applied to the whole house, and could not be considered an obligation on a person claiming dower. When, therefore, the testator authorized his executors to repair, he did not expect that they would control two-thirds of the estate and the widow one-third, but that they would manage the entire property.
The authority to rent and lease, to repair and to insure, by necessary implication, vests the trustees with the legal title. They must not only execute leases, but enforce them, put in tenants and dispossess them, the proper performance of which requires the title of the estate. So to repair, there must be such a right of entry and control in the trustees as gives them complete dominion; and to insure, involves the necessity of ownership, for the policy must be taken in the name of the trustees. But to repair and to insure necessarily involve expenses chargeable upon the rents and profits; and an executor who is authorized to lease, repair and insure by necessary implication, may so lease that rents will come to his hands out of which to pay repairs and insurance, and if a net income is to be paid out of such rents, the executor becomes the party whose duty it is to ascertain and pay it. In Leggett v. Perkins (2 Comst., 297), the testator constituted his executors trustees of the estate devised to his daughters for life, and authorized them to take charge of, manage and improve the same, and pay over to them, from time to time, the rents, interest and income thereof. It was held to be "very obvious that the legal estate in the premises was necessary to enable the trustees to discharge their *Page 331 duties," and that the trust was a valid one under the third subdivision of section 55 of the statutes of Uses and Trusts (1 R.S., 729), and that by section 60 of the same statute, the whole estate in law and equity vested in the trustees.
In Brewster v. Stryker (2 Comst., 19), the testator devised his real estate to his grandchildren, and then provided that the lands should not be sold or alienated, but that his executors should lease or rent the same and pay the rents, issues and profits to his said grandchildren, c.; it was held that the executors were trustees for the purposes of the will, and took, by implication, the legal estate during the lives of the grandchildren.
These authorities are conceived to be abundant to establish the proposition that the authority to lease, rent, repair, insure, pay taxes, assessments and interest, and pay net income to devisees, carried the legal title to the executors in this case, and created a trust in them valid under the statute.
It follows, therefore, from the decision of this court inSavage v. Burnham, that a claim of dower is totally inconsistent with the provisions of the will, and the plaintiff was not at liberty to take both the provisions of the will and dower.
In the language of COMSTOCK, J., in the case cited, "During her life she was to have one-third of the clear rent and profits, and the other two-thirds were to go into a general fund for distribution. The entire estate, with all its income, except the one-third, is given, in the clearest possible terms, to the testator's children and the children of his daughters. It is, therefore, impossible for her to receive any part of it, except what is expressly given to her, without subverting the will to that extent."
The circuit judge erred in directing a verdict for plaintiff.
I have considered the question as to the effect of the alleged release of dower. In my opinion, the instrument was not designed for any such purpose as a release of dower, and ought not to be so construed. Its objects are apparent on its face; to wit, to dispose of the vexed question as to her *Page 332 rights under the provision of the will directing moneys to be paid to her for her suitable support the first six months, and protecting the executors on paying her a sum which might prove larger than was designed by the surrogate's decree, and the instrument ought to be construed accordingly.
I am not embarrassed by the question of parties, nor the form of the judgment. The Code authorizes all persons having conflicting claims to be made parties. (Code, § 118.) The defendants who appeared and answered, admitted the receipt of the rents and profits as alleged in the complaint, putting nothing but the amount in issue. They are the heirs-at-law, and the statute authorizes the verdict for rents and profits against them.
The judgment below should be reversed, and new trial ordered, costs to abide the event.
All the judges concurring, the judgment was reversed and a new trial ordered. *Page 333