FIRST DEPARTMENT, MARCH TERM, 1903. Edward Bruce Hill, for the appellants. Selden Bacon, for the respondents. HATCH, J.: [Vol. 81. The question presented by this appeal is solved by a determination as to whether a trust is created of the property devised and bequeathed by the testator, in which event title to such property became vested in the trustees, or whether a power in trust is alone created. The learned court at Special Term reached the conclusion that the will created a trust estate and vested title in the property sought to be recovered in the trustees, and that the plaintiffs were, therefore, without standing to maintain this action. The appellants earnestly insist that this conclusion is wrong; that by the terms of the will a power in trust only was given, and that the title to the property became immediately vested in the legatees under the will upon the death of the testator. Section 55 of the Statute of Uses and Trusts provides for the creation of express trusts, subdivision 3 of which is as follows: "To receive the rents and profits of lands and apply them to the use of any person, during the life of such person, or for any shorter term, subject to the rules prescribed in the first article of this title." And by section 60 it is provided: "Every express trust, valid, as such, in its creation, except as herein otherwise provided, shall vest the whole estate in the trustees, in law and in equity, subject only to the execution of the trust. The persons for whose benefit the trust is created shall take no estate or interest in the lands, but may enforce the performance of the trust in equity." Section 58 provides: "Where an express trust shall be created, for any purpose not enumerated in the preceding sections, no estate shall vest in the trustees; but the trust, if directing or authorizing the performance of any act which may be lawfully performed under a power, shall be valid as a power in trust." Section 59 provides: "In every case where the trust shall be valid as a power the lands to which the trust relates shall remain in or descend to the persons otherwise entitled, subject to the execution of the trust as a power." (1 R. S. [Edm. ed.] 678, 679.) These provisions of the Revised Statutes were carried into the Real Property Law without change. (Laws of 1896, chap. 547, §§ 76, 79, 80.) App. Div.] FIRST DEPARTMENT, MARCH TERM, 1903. The language of the will gives to the executors of the testator, or the survivor of them and their successors, the property of the testator, and directs that in case any of the children, or the issue of a deceased child, shall at the time of the testator's death be minors under the age of twenty-one years, the executors are to "hold and invest the share of each of such minor or minors, and to receive and collect the interest and income arising therefrom and to apply the same toward his, her or their education and support until each respectively shall reach the age of twenty-one years." This language is clear, unequivocal, unambiguous and in terms it creates an express trust to receive rents, issues and profits of the property devised and apply the same to the use of the minors. This brings it within the terms of the statute and thereby an express trust is created. The rule as to personal property is the same as to real property. (1 R. S. 773, §§ 1, 2, re-enacted in Pers. Prop. Law [Laws of 1897, chap. 417], § 2.) It has been held in numerous authorities that as the title to the property bequeathed was in the trustees, they alone have power to maintain an action to protect and defend the same. The only issue in such case is the one which arises between the trustee and the party who has impaired the fund, or converted the trust property, or has wrongfully procured the same. Under such circumstances the beneficiaries of the trust estate are not necessary nor proper parties. (Matter of Estate of Straut, 126 N. Y. 201; Wetmore v. Porter, 92 id. 76.) The defendants when they received the shares of stock were not purchasers for value of the same and did not become bona fide holders thereof. They had notice of the source from whence it came and were, therefore, chargeable with notice of the trust, the powers of the trustees to deal with the trust property, and in legal effect they became bound by the terms of the trust. (Wetmore v. Porter, supra.) This fact, however, did not raise a cause of action in favor of these plaintiffs against the defendants. It simply showed an existing condition upon which might be based a cause of action in favor of the person who held title to the trust property. In such case if the trustees do not bring action it is incumbent that a demand be made upon them so to do, and if the trustees refuse to enforce the right of action, the cestui que trustent, by proper averments, may maintain an action to enforce their rights under the trust, making the trustees parties defendant FIRST DEPARTMENT, MARCH TERM, 1903. [Vol. 81. in such action. (Western Railroad Co. v. Nolan, 48 N. Y. 513.) Upon a proper application, doubtless, the court would have the power to appoint a trustee, when necessary, to bring an action to protect or recover the trust property or its value when it has been. wrongfully misappropriated. The facts of the present case are without dispute; as the will itself created a trust estate, the title to the property bequeathed thereunder became vested in the trustees, they transferred title to the same during the existence of the trust, in consequence of which the plaintiffs have no standing to maintain this action. The right to maintain it rests solely upon the wrong done to the estate, and this must be enforced in some one of the methods already pointed out. The cases relied upon by the appellants in support of their contention are all without application. Therein, the questions arose upon a construction of the instruments with the result that they were held not to create a trust, but only a power in trust. It was recognized in Onondaga Trust & Deposit Co. v. Price (87 N. Y. 542) that a power might be given to executors to collect and pay over dividends upon stock without vesting in them title thereto, and that there was no inconsistency between the creation of such a power in the executors and the vesting of title in the beneficiaries, but no case of which we are aware has gone so far as to hold that where the devise is to the executors or trustees, with directions to hold the property, receive and collect moneys and invest the same for the benefit of a life or for a shorter time, it is anything else than the creation of a trust. That is this case. It follows, therefore, that the court below made correct disposition of the main question. In awarding judgment, however, the complaint has been dismissed upon the merits. This was improper, and the judgment appealed from should, therefore, be modified by striking out the words "upon the merits," and, as so modified, the judgment should be affirmed, without costs to either party in this court. VAN BRUNT, P. J., INGRAHAM, MCLAUGHLIN and LAUGHLIN, JJ., concurred. Judgment modified as directed in opinion, and as modified affirmed, without costs to either party. App. Div.] In the Matter of the Application of THE CITY OF NEW YORK, Relative to Acquiring Title to the Lands Required for Opening, Widening and Extending One Hundred and Tenth Street (Although Not yet Named by Proper Authority) from the Circle at Fifth Avenue to Seventh Avenue, and that Part of the westerly side of Lenox Avenue between One Hundred and Tenth Street and Avenue St. Nicholas, etc. J. SERGEANT CRAM and J. WOODWARD HAVEN, Trustees, etc., of HENRY A. CRAM, Deceased, Appellants; PHILIP DIETRICH, Lessee, and the CITY OF NEW YORK, Respondents. Will — when two distinct trusts are created, one for the life of the testator's widow and the other for the lives of certain children, with direction that on their deaths their respective shares go to their issue as directed by each child or otherwise absolutely — a lease for a term of years, given during the widow's life, terminates at her death ·measure of damages to which the lessees are entitled where the demised premises are taken by the city of New York for street purposes. A testator, by the 3d clause of his will, devised his residuary estate, both real and personal, to his executors, with directions to hold the same upon certain specified trusts during the lifetime of his wife. The 6th clause of the will provided as follows: "After the death of my wife, I direct my trustees to divide my real and personal estate into five equal parts or shares, to hold and invest one such share for each of my children, to collect and receive and pay and apply the rents and income arising from the share set apart for each child to his or her use during life. I further direct that on the death of my children and as they severally die my executors and trustees convey, pay and assign to the issue of said child the part or share held in trust for him or her in such proportions and at such time or times as he or she shall direct and appoint in and by his or her last will and testament and in case of failure to make such appointment then to such issue absolutely." The 7th clause provided: "I direct that if any of my children should die in my lifetime or in the lifetime of my wife that my executors and trustees pay the income, rents, profits and proceeds of the share of said child, to the issue of the one so deceased during said trust." The 9th clause provided: “I authorize and empower my executors and trustees to rent or let from year to year or for any term of years, any of the real estate." By a codicil to his will, the testator provided: "And Whereas by the sixth clause of my said last will and testament, one of the five equal parts in which my estate is to be divided in the manner and at the time therein mentioned, is given to my son, John Sargent* Cram, for life only, I hereby direct that the FIRST DEPARTMENT, MARCH TERM, 1903. [Vol. 81. said fifth part, so devoted to my said son, John Sargent* Cram, shall be conveyed, paid and assigned to the said John Sargent* Cram absolutely and entirely without any restriction." The codicil also contained a precisely similar clause respecting that part of the estate devised to another son of the testator. The testator's wife survived him, and at a time when she was sixty-six years of age and the probable duration of her life was about seven years, the surviving executor and trustee of the will leased a portion of the testator's residuary real estate for a period of twenty years. Held, that the original trust estate would, by the terms of the will, terminate upon the death of the testator's widow, and that the trust estates created by the 6th clause of the will were entirely new and different estates; That the trustee had no power, under the 9th clause of the will, to lease the testator's real estate for a period extending beyond the duration of the original trust estate, viz., the widow's lifetime, as otherwise, if such a lease were valid, and the widow died before the expiration of the lease, the trustees would be unable to comply with the provisions of the will and codicil directing them, upon the death of the widow, to transfer to the two sons mentioned in the codicil the absolute title to their shares, and also to transfer to the issue of any child of the testator, who might have died before the expiration of the trust estate, the absolute title to such deceased child's share; That the lease for twenty years executed by the surviving executor was valid while the widow lived, and that where, during the lifetime of the widow, the leased property was taken by the city of New York for street purposes, the lessee was entitled to be awarded the value of the lease during the widow's lifetime; That, in measuring such damages, the rule stated in Matter of Daly (29 App. Div. 286) should be followed. APPEAL by J. Sergeant Cram and J. Woodward Haven, as trustees, etc., of Henry A. Cram, deceased, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of July, 1902, confirming the report and supplemental report of commissioners of estimate and assessment. James A. Deering, for the appellants. Truman H. Baldwin, for the respondent Dietrich. HATCH, J.: The regularity of the proceedings in this matter is not questioned, nor is the city interested. The point involved is the validity of the award made to Philip Dietrich for the value of a leasehold interest in certain premises affected by the widening of One Hundred and |