#### In the Matter of the Judicial Settlement of the Account of Ambrose S. Murray, Jr., as Executor, etc., of Harriet W. Barnard (Formerly Harriet B. Berdell), Deceased, Respondent. Kenneth P. Barnard, Appellant.

Second Department,

February 28, 1908.

Testamentary trust—words creating separate trust's in undivided lands - .— effect of-termination óf trust before death of testatrix - J no liability , of trustee for rent's — executor not entitled to credit for expenditures as trustee—precatory words — when legacy absolute. ,

Where a will devises real property in trust and. directs the trustee to divide the . lands-into as: many equal portions as the testatrix leaves issue her .surviving, a separate trust is created for each child. ' .

*549Where the will provides that one of the trusts shall terminate when the beneficiary attains his majority, and that event happened before the death of the testatrix, no estate vested in the trustee, but the ulterior devise took effect immediately without a conveyance by the trustee subject to the execution of his" power to sell and divide the lands, for which purpose no trust was necessary.

A naked trust to sell and divide lands cannot be created.

Where the trust as to one of the undivided half portions terminated during the life of the testatrix, the beneficiary becoming vested with the legal title, was entitled to receive one-half of the rents,-but cannot charge the trustee for rents riot collected by him, for he was under no duty to collect the same.

But, under the circumstances, the trustee in his collateral capacity as *executor,,*is not entitled to credit for the payment of a judgment for personal injuries resulting from the fall of a chimney obtained against him on account of. his personal negligence as trustee, nor can he have credit -as executor for a . loss sustained in making an investment as trustee.

When after creating trusts as aforesaid the testatrix gives all the rest, residue and remainder of her estate to the executor named “requesting that he make such distribution of the same or any portion thereof,”- as the testatrix shall indicate by memorandum, written direction or otherwise, there is a gift . of the residuary estate to the executor absolutely without imposing upon him any obligation, the testatrix merely trusting him to carry into effect any directions she may see fit to make.

Appeal by Kenneth P. Barnard from certain parts of a decree of the Surrogate’s Court of the county of Orange, entered in said Surrogate’s Court on the 29tli day of April, 1907.

*William R. Brinokerhoff,*for the appellant.

*H. W. Rutherford,*for the respondent.

Miller, J.:

This is an appeal from a decree of the surrogate settling the account of the executor of Harriet W. Barnard; who died October 14,1898. The questions presented relate to the property disposed of by the 3d and 4th clauses of her will. By the 3d clause certain real property was devised to the respondent in trust, to be divided into as many equal portions as she should leave issue surviving, one portion thereof to be held for the use and benefit of her son, Howard R., during his natural life, and one portion for that of each of her sons, Philip H. and Kenneth Parkliurst, until they should respectively arrive at the age of twenty-one years. The trust for the benefit of Howard R. could be terminated by the *550■ written consent of himself and the trustee, in which case said share was to vest absolutely in him! The shares of Philip H. and Kenneth Barkhurst were to be conveyed and delivered to them when they should -respectively arrive at the age of twenty-one years. Bhilip died before the death of the testatrix; Howard and Kenneth were both twenty-one- at that time. The trust for the benefit of Howard was terminated by the written consent of himself and the trustee on the 21st of December, 1905. The 4th clause of the will is as follows: *“ Fourthly.*All the rest, residue and remainder of my estate, of whatsoever nature and description, and wheresoever situate, I give and bequeath unto the said Ambrose S. Murray, Jr., requesting that he maké such distribution of the same or any portion thereof, as I shall indicate by memorandum, written direction or otherwise.” . -By the 5th clause the;respondent;, the said Ambrose S. Murray, Jr., was appointed executor' and given authority to convert her real estate into personalty, to make and change investments and to hold the. same for the purposes of any of the- trusts mentioned.; Objections to the account were filed' by said Kenneth,, and the following matters are presented by his appeal:

*a.*It appeared that.the agent.who had charge of the-renting of ’ certain of the real property did not account to the executor for any rents received from January 1,1901, to September 1,1902, and said-rents were lost by reason of the insolvency of said agent. The appellant seeks to have the executor’s apcount surcharged with the amount of the loss thus sustained.

*b.*The executor only accounted for the net rents received' during another period, and showed that the agent in charge of-the property made repairs and accounted todiim.for-the net receipts. The appel-lant asserts that he is entitled- to know the gross amount of rents received, and that the executor is required to prove the amount and reasonableness of the expenditures.

*c.*A personal judgment was recovered against the respondent in an action brought to recover damages-for personal injuries resulting from the fall of a chimney. He was credited with the amount of said judgment and the expenses incurred by him in the defense of said action. ' That credit was objected to upon the ground' that the ■recovery was based on his personal negligence as trustee.

*d.*On December 5,1904, before the trust for the benefit of the *551said Howard was terminated, the respondent invested the sum of $20,000 in Hew York city bonds, paying a premium therefor, and on May 14, 1906, after the termination of said trust, he sold the bonds at a loss of $1,219.16. The appellant asserts that the loss thus sustained cannot be charged against his share.

*e.*The residuary estate consisted of the personal effects of the testatrix and of the sum of $3,653.51. It appeared that no memorandum or written direction, referred to in the 4th clause of the will quoted supra, was found. The respondent distributed the personal effects as he thought the testatrix would wish, and asserts that the-rest belongs to himself absolutely. The surrogate ruled in favor of the respondent on each of the above stated matters.

The importance of determining at the outset the capacity in which the respondent acted has apparently escaped the consideration of counsel. The testatrix directed the trustee to divide the estate devised to him into as many equal portions as she should leave issue her surviving. A separate trust was created for each child, whose interest was separable and distinct. (*Wells*v. *Wells,*88 N. Y. 333, and cases cited; *Locke*v. *F. L. & T. Co.,*140 id. 135; *Steinway*v. *Steinway,*163 id. 183; *Matter of Mount,*185 id. 162, 169.) The appellant having attained his majority before the death of the testatrix, the purpose of the trust for him ceased and no estate vested in the trustee, but the ulterior devise took effect immediately. Ho conveyance by the trustee was necessary. (Real Prop. Law [Laws of 1896, chap. 547], § 89; *McLean*v. *Freeman,*70 N. Y. 81; *Watkins*v. *Reynolds,*123 id. 211; *Locke*v. *F. L. & T. Co., supra; Hopkins*v. *Kent,*145 N. Y. 363; *Clark*v. *Clark,*147 id. 639.) Ho trust was necessary for the execution of the power to sell and divide; indeed no naked trust for that purpose could be created. *(Manice*v. *Manice,*43 N. Y. 303, 363.) Upon the death of the testatrix then the appellant’s share of the estate vested immediately in him, subject to the execution of the power to sell and divide. The respondent had no trust duties to perform except in respect to the undivided half of the estate, which vested in him as trustee for Howard. So long as the estate remained undivided, the appellant and respondent were each entitled to receive one-half of the rents, but neither could charge the other for rents not collected. As executor the respondent had no duty to *552collect rents for the appellant, and we are concerned on this appeal only with his duties as executor. This conclusion disposes of subdivisions *a*and' .& *(sujyra)*in favor of the respondent, and of subdivisions *.0*and *d*in favor of the appellant. The respondent as executor cannot have a credit for the payment of. a judgment obtained against him on account of his personal negligence as trustee, nor for a loss sustained in making an investment as trustee.

The question, whether the precatory words in the 4th clause of the will impressed a trust on the residuary estate of the testatrix, may riot be free 'from doubt. Definiteness in respect of the subject and.object of the trust have been considered important considerations in determining. the intention of the. testator in this class of 'cases. In the case at bar the subject of the trust, if one was intended, was certain, *i. e.,*the residuary estate; and the uncertainty respecting the object of the trust arose because the. testatrix did not disclose her intention, .but left that for some, subsequent memorandum or direction. There is no doubt that if a trust was intended, the residuary estate must be distributed' among the next of kin, for the object of the trust is not disclosed. The word *“*distribution,” used by the testatrix,, would tend strongly to indicate the absence of any'intention to maké an absolute gift to the ■ respondent; yet I think such was her intention. By the 3d-clause of her will she created a trust and appointed the respondent trustee, and the fact of her using entirely different language in the 4th clause is significant of an intention not to create a -trust. Moré significant still are the words *“*or of any portion thereof.” She was evidently uncertain whether she would make any request by memorandum, written direction or otherwise, or if she made one to what portion of the residuary estate it might relate. Her residuary estate included her personal effects. I think she .'intended to give the residuary estate absolutely to the respondent, imposing no obligation upon him' whatever, but trusting entirely to him to carry out any direction she might see fit to make. The tendency to construe precatory words, added to words of absolute bequest or devise, ' as ■ expressive of a wish only,’ without imposing an obligation, is indicated by the recent decision of the Court of Appeals in *Post*v. *Moore*(181 N. Y. 15). The precatory words in that case were: “ It is my wish and desire thát my said wife shall pay'the sum of three *553hundred dollars a year to my sister-in-law.” The subject and object were definite, the testator’s wish plainly expressed, but the court held that that was an expression of a wish only, and that the execution of it rested in the discretion of the wife, who took absolutely. I think that the words in that case more plainly indicated an intention to create a trust than those under consideration in the case at bar.

It is urged that the executor should not have commissions, but there is nothing in the record justifying withholding them.

The decree should be modified in the respects pointed out, and as modified affirmed.

Woodwaed, Jenks, Hooker and Gáynoe, JJ., concurred.

Decree of the Surrogate’s Court of Grange county modified in accordance with opinion, and as so modified affirmed, without costs. Settle order before Hr. Justice Hiller.