#### Helen S. Sicker et al., Plaintiffs, *v.*Charles J. Sicker et al., Defendants.

(Supreme Court, New York Special Term,

June, 1898.)

Partition — Intention of testator and owner of the fee that the' lands should he held — Intervention of an express trust.

The will of a testatrix provided that “ When my youngest grandchild becomes of age, I do give, devise and bequeath all the rest and residue of my estate, both real and personal (which residue included certain premises.here sought to be partioned), unto my seven grandchildren, to be divided between them equally, share and share alike. I do order my executor or executrix, hereinafter named, to pay unto Jennie Buhl, Preda Buhl and Dora Buhl, three of the children of my deceased daughter, Helene Buhl, formerly Bornhagen, each the sum of $5 weekly until my youngest grandchild shall become of age ”. This granchild was aged thirteen.

Held that an action to partition the residuary estate could not be maintained, both because it was the expressed intention of the testatrix to postpone a division until the youngest grandchild became of age, and also because the provision relative to the Buhl children created an express trust, whose purpose would be defeated if the court sanctioned a partition at the present time.

Demubeeb to complaint.

C. E. Minor, for plaintiffs.

A. Lauterbach, for defendants.

Gildersleeve, J.

The action is for the partition of real property, devised to the parties by the will of Dorothea Bornhagen, deceased. A demurrer is interposed on the ground that the complaint does not state facts sufficient to constitute a cause of action. A *738copy of the will is annexed to the complaint, and forms a part thereof. The only provisions of the will that require notice on this argument are the' following, viz.: “ When my youngest grand-, child becomes of age, I do give, devise and bequeath all the rest and residue of my estate, both real and personal (which residue includes, the premises here sought to be partitioned), unto my seven grandchildren, to be divided between them equally, share and share alike. I do order my executor or executrix, hereinafter named, to pay unto Jennie Buhl, Ereda Buhl and Dora Buhl, three of the children of my deceased daughter, Helene Buhl, formerly Bornhagen, each the sum of $5 weekly until my youngest grandchild shall become of age.” It is stated in the complaint that the youngest grandchild is only, thirteen years of age. It appears from the foregoing provisions of the will that it was the intention of the testator to postpone the partition of the residuary estate, including the premises in question, until the youngest grandchild became of age. ■ A will -should be so construed as to carry out the testator’s intention, unless some positive rule contravenes, which is not the case here. See Altrock v. Vandenburgh, 54 N. Y. St. Repr. 326, Parker, J. Under these circumstances, no partition should be ordered until the time indi-. cated in the will. See Zuenzer v. Minzenmair, 20 Misc. Rep. 212, Gaynor, J.; also Muller v. Struppman, 6 Abb. N. C. 350. It. also appears that the last-above quoted provision of .the will creates an express trust annexed to the office of executor. See Matter of Hecht, 71 Hun, 65. To constitute a valid express trust it is not necessary that the purpose of the trust should be stated in the precise words of the statute; it is sufficient if the intention to. create the trust can be fairly collected from the instrument. See Morse v. Morse, 85 N. Y. 60; also Cahill v. Russell, 140 id. 403. A partition, as demanded by the complaint herein, would defeat the purpose of the trust, and cause a breach thereof, which the court should not sanction. See Baldwin v. Humphrey, 44 N. Y. 616; Morse v. Morse, *supra.*As it appears on the face of the complaint that the plaintiffs cannot prevail, the demurrer should be sustained and the complaint dismissed.

Demurrer sustained and complaint dismissed.