FIRST DEPARTMENT, JULY TERM, 1894. [Vol. 79. judgment of the Supreme Court in favor of the defendant Thomas F. Mullins, entered in the office of the clerk of the county of New York on the 15th day of May, 1894, upon the decision of the court, rendered after a trial before the court without a jury at the New York Circuit, dismissing the plaintiffs' complaint and for costs. W. H. Hamilton, for the appellants. Emmet & Robinson, for the respondent. VAN BRUNT, P. J.: This action was brought to recover possession of house and lot No. 326 East Fifty-seventh street in the city of New York. It appeared upon the trial that one Ellen Hoey died seized of the premises on the 26th of January, 1890, leaving a last will and testament, which was duly admitted to probate and letters testamentary issued thereon to the defendant who was the executor therein mentioned. By said will the said Ellen Hoey devised the premises in question as follows: * "Second. I give, devise and bequeath the house and lot known and described as Number 326 East 57th street, in the city of New York, unto my brother Thomas Francis Mullins, in trust, nevertheless, to have and to hold the same during the minority of the six children of my brother John Mullins, for the benefit of said children. * * On said children attaining majority I give, devise and bequeath the house and lot devised in this paragraph to the said six children and the issue of any deceased child, and the survivor or survivors of them, share and share alike, issue to take per capita and not per stirpes, to have and to hold the same to their own use and behoof forever." Upon the death of the testatrix and the probate of the will the defendant went into possession of this house and lot and has collected the rents thereof. All the six children of John Mullins mentioned in the will were at the time of the commencement of this action infants under the age of twenty-one years, and this action is brought by their guardian ad litem claiming possession of the premises in question upon the ground that there being no valid express trust to collect the rents of the premises during the minority Hun.] FIRST DEPARTMENT, JULY TERM, 1894. of the infants, there was a present devise of the same to the said infants and they are entitled to the possession thereof. The court below disposed of the case upon the ground that the provisions of the will of Ellen Hoey contravened the statute against perpetuities in that the absolute power of alienation was suspended during the minority of the whole of the six children - necessarily, therefore, for more than two lives in being. This question, however, it does not seem to be necessary to consider in the disposition of this appeal; because it seems to us, upon an examination of the will, and being guided in the construction by the rule that the intention of the testatrix is to govern, if the statute against perpetuities was not contravened, there was an express trust to collect the rents during the minority of these infants and to apply the same to their use, in which case the legal estate would be in the trustee, and he would be entitled to the possession of the premises. It is undoubtedly true that the draughtsman of the will has expressed the intention of the testatrix in perhaps inartificial language; but the intent seems to be perfectly manifest. By a previous clause in the will the testatrix had given to her brother, the defendant, the house adjoining the one in question; and it was her intention that the children of her brother John Mullins should have the other house upon their attaining their majority; and it was furthermore her undoubted intention that the children of her brother John, during their minority, should have applied for their benefit the rents which might be derived from the premises in question. In order to effectuate this object she devised the premises in question to her brother Thos. F. Mullins, in trust, to hold the same during the minority of the six children of her brother John for the benefit of said children, and then provided that upon the children attaining their majority such children were to have absolutely the premises in question. Here is a plain intimation upon the part of the testatrix that the defendant is to hold these premises for the benefit of these infants until they shall attain their majority, when they are to enter into full enjoyment of the bequest. It is clear that the holding of the premises for the use of the children implied the right upon the part of the trustee to enter into possession, to collect the rents and to apply them to the use of the infants. This is a trust expressly recognized by the statute, and, as has already been stated, authorized FIRST DEPARTMENT, JULY TERM, 1894. [Vol. 79. the trustee to take possession of the premises, to collect the rents, and apply them to the use of the said infants. Simply because a testatrix has used inapt language in order to carry out this plan or design is no reason why it should be defeated. Words have been transposed, words have been supplied, and interpretations given to phrases not accustomed to be applied to them, in order that expression may be given to the designs of a testator. Therefore, in a case such as the one at bar, it is the duty of the court to place such interpretation upon the language used as effectuates the manifest intention of the testatrix. We are of opinion, therefore, without determining the question as to whether there is a suspension of the power of alienation beyond that which is permitted by the statute, that the defendant as trustee has at least the right to the possession of the premises for the purpose of collecting the rents and applying the same to the use of the children of the testatrix's brother John until such children shall attain their majority. This view is sufficient to dispose of the question involved in this action, and, therefore, we think that the judgment appealed from should be affirmed without our expressing any opinion upon the question as to the effect of the statute in respect to the suspension of the power of alienation. The judgment should be affirmed, with costs. FOLLETT and BARRETT, JJ., concurred. Judgment affirmed, with costs. MARVIN CROSS and Others, Plaintiffs, v. ANGLO-AMERICAN BANKING COMPANY, Defendant. President of a banking corporation when presumptively authorized to equip its office with furniture. Where the president and chief executive of a foreign banking corporation, having its principal place of business in the city of New York, is expressly authorized by the articles of incorporation, and by the action of its directors, to open its office in the city of New York, he has, presumptively, authority to purchase the furni ture necessary to equip such office, in the absence of a by-law or resolution limiting his power, or requiring that no expenditure shall be made except under a resolution of the board of directors of such corporation. Hun.] FIRST DEPARTMENT, JUNE TERM, 1894. MOTION by the defendant, Anglo-American Banking Company, for a new trial on a case containing exceptions ordered to be heard at the General Term in the first instance after a verdict had been rendered in favor of the plaintiffs, by direction of the court on the 14th day of May, 1894, after a trial at the New York Circuit. Arthur R. Robertson, for the plaintiffs. John C. Shaw, for the defendant. PER CURIAM: This action was brought to recover the alleged value of office furniture furnished for defendant's use between March 15, 1892, and May 31, 1892. The defendant is a banking corporation, organized June 5, 1888, under the laws of West Virginia, having its principal place of business at the city of New York. From the date of the incorporation of the defendant to the date of the trial of this action Samuel J. Gorman was one of the directors and its president. Aside from Gorman, there were four other directors, J. H. Hobson, Edmond Huerstel, C. V. Sidell and Charles March. Mr. Gorman testified, without objection, that he was the president of the corporation, and, under the defendant's objection, that he ordered the furniture and fixtures from the plaintiffs for use in the New York office, which was opened under the direction of Mr. Hobson, Mr. Gorman, Mr. March and himself, and that the furniture was furnished by the plaintiffs and was used by defendant in its New York office. Mr. March, one of the defendant's directors, testified that the furniture was furnished and was used in the defendant's office in the city of New York. There was no dispute upon the trial about the fact that the furniture was ordered by the defendant's president, was used in its office, and was worth the price charged. The only defense interposed was that the plaintiffs were unable to prove a resolution of defendant's board of directors authorizing its president to purchase this furniture. No evidence was given of any by-law or resolution limiting the power of the president, or requiring that no expenditure should be made, except upon the resolution of the board. The evidence was entirely uncontradicted, and is ample to HUN-VOL. LXXIX. 54 FIRST DEPARTMENT, JULY TERM, 1894. [Vol. 79. justify the conclusion of the learned trial judge that the president had power to order the articles furnished. Besides this, it was shown that the furniture was used in defendant's office with the knowledge of its directors and of some of its principal stockholders. The president was defendant's chief executive officer, and was expressly authorized by the articles of incorporation and by the action of the directors to open an office in this city, and presumptively he had authority to purchase furniture necessary to equip the office which he was directed to establish. The conclusion reached by the trial judge is the only one possible the evidence contained in the record, and the judgment should be affirmed, with costs. upon Present-VAN BRUNT, P. J., FOLLETT and BARRETT, JJ. 79 426 27ap289 LEILA R. MARTIN, Individually and as Executrix, etc., of WILLIAM The eleventh clause of the will of a testator was as follows: |