#### Ida Seidelbach et al., Plaintiffs, *v.*Robert L. Knaggs, Defendant.

(Supreme Court, New York Special Term,

April, 1899.)

Specific performance — Under a passive trust the title is. in the beneficiaries.

It is not a sufficient defense to an action for the specific performance of a contract for the sale of lands, conveyed in 1875 and since occupied by the plaintiffs for more than twenty years without any protest from anyone, that the deed under which they claim to hold was made in form to a trustee for them (they being infants), upon whom was imposed no active duty in respect to the property, as: in such ease the trust is merely passive, the trustee takes no interest either legal or equitable, and the title vests in the beneficiaries under 1 R S., m. p. 728, §§ 49, 50, practically reenacted in the Laws of 1896, chap. 547, § 73..

Action for specific performance. Facts appear in the opinion.

D. E. Meeker, for plaintiffs.

A. Cohen, for defendant.

Gildersleeve, J.

This is. an action for specific. performance. The parties entered into a contract of sale, by which defendant was to purchase certain real estate from the plaintiffs. Five hundred dollars of the' purchase- price was paid, but. thereafter the defendant refused to complete the sale on the ground that the .plaintiffs could not give title. All ofher objections were waived on the trial." It appears that in November, 1875, these., premises were conveyed by James -P. Ledwith, a referee in foreclosure, to George Henry Thaule, as trustee for the plaintiffs herein. The defendant claims that “ there is no record of any transfer from George Henry Thaule, trustee of the plaintiffs, or of the terms under which George Henry Thaule held the title to said premises.” *111It appears from the evidence that the deed, above mentioned, was duly recorded, and that it was delivered to the plaintiffs, who have received the rents and paid the taxes, and .otherwise discharged the duties and exercised the rights of ownership for considerably more than twenty years, without any protest or objection, or claim of adverse title, so far as the evidence discloses, on the part of anybody. The deed contains no reference to any trust, other than the mere designation of the grantee as trustee, for the plaintiffs, who were infants at that time. Ho trust, object or purpose or limitation is specified in the deed which grants the land to the said Thaule, as such trustee, *“*to have and to hold the same unto the said party of the second part and his assigns, to his and their own proper use, benefit and behoof.” It seems to me that, under this state of facts, the plaintiffs were the real beneficiaries of the grant, and that the title to the land passed to and vested in them. See Syracuse Savgs. Bank v. Holden, 105 N. Y. 415. Section 73 of chapter 541 of the Laws of 1896, which •is practically a re-enactment of 1 R. S. 728, §§ 49, 50, provides that every disposition of real property, "whether by deed or by devise, if made to any person to the use of or in trust for another, vests no estate or interest, legal or equitable, in the trustee. In the deed in question, the trust "was one of those passive trusts, where the immediate possession arid whole beneficial use of the land are given directly to the *céstui que trust,*the trustee being made,» by the deed, the depositary of a mere naked title, with no active duties to perform in respect to the property. In such cases the whole estate vests in-the beneficiary. See Dry Dock Co. v. Stillman, 30 N. Y. 194. In the case at bar the trustee, George Henry Thaule, died in 1880, but his daughter swears that he -told her that the property in question belonged to the plaintiffs, and that her mother said the same, and that she herself, as the heir-at-law of her father, never made any claim to the said property, I am of opinion that, under the state of facts disclosed by the evidence in this case, the objections of the defendant were riot well founded, and that the plaintiffs are entitled to judgment for the relief demanded'in' the complaint.

Judgment for plaintiffs, with costs.