Opinion of the Court, per PARKER, Ch. J.

[Vol. 162.

is transferred, the trust is at an end the moment the conveyance is executed, so far as relates to any power over the estate. The trustee has no further office to perform but that of making the proper application of the money. There is no suspense of the power of alienation, and it would therefore be idle to provide any safeguard against perpetuity. Was the word lease in this connection used for the purpose of authorizing a trust of a different character? I think not. * * * If there is any possible way in which the power to lease can be exercised without suspending alienation, effect can be given to every word in the subdivision without contravening the manifest intent of the legislature. It is a power to make leases for the benefit of legatees, and I see no objection to demising the land directly to the legatee at a nominal rent for a period long enough to satisfy the legacy: or in the case of a charge on the land, leasing it directly to the person entitled to the debt for a term which will satisfy the charge. It may also, I think, be leased to a third person, reserving the rent to the legatee or person having the charge."

The opinion of Judge BRONSON in that case, written as it was shortly after the enactment of the Revised Statutes and showing as it does careful consideration of the subject, has generally been regarded as the correct construction of those sections and as conclusive upon the subject. About eight years later the chancellor in Parks v. Parks (9 Paige Ch. 107), had before him for consideration a will which involved many interesting questions and among the numerous provisions considered was one devising to a trustee in trust certain lots, from the rents and profits of which he was directed to pay the interest on the incumbrances, and use the profits and income for the support of cestuis que trust, and to employ as much as should not be required for that purpose in the reduction of the principal of the incumbrances. The chancellor, without referring to Hawley v. James (supra) and without argument, says: "The Revised Statutes also have authorized the creation of an express trust to lease lands for the purpose of satisfying a charge thereon. The authority of the trustee,

N. Y. Rep.] Opinion of the Court, per PARKER, Ch. J.

therefore, to pay the interest of the incumbrances out of the rents and profits of these lots in the first place, and to apply so much of those rents and profits as might be spared from the support of the cestuis que trust, to reduce the principal of the incumbrance on their respective lots, was therefore valid; and should be carried into effect, according to the intention of the testator."

The subject was not otherwise considered, and in view of the elaborate discussion of the question when it was before the court in Hawley v. James, it would seem as if that question had not been the subject of debate by the counsel who appeared before the chancellor and that his disposition of it was one of first impression. It is true that the decision in the Parks case was subsequently affirmed by the Court of Errors (see foot note, 9 Paige Chan. Rep. 127). But we have no evidence that this question was the subject of contest on review. It is now said that the rule laid down by the chancellor in Parks v. Parks was adopted by this court in Leggett v. Perkins (2 N. Y. 297), and Van Schuyver v. Mulford (59 N. Y. 426). But as we read those decisions no such question was involved. In Leggett v. Perkins the inquiry was whether a trust to receive the rents and profits of lands and pay them to a trustee, could be sustained under the third subdivision of section 55, which authorizes a trust to receive the rents and profits of land and to apply them to the use of any person. Upon that question Parks v. Parks was cited with approval, but that in nowise constituted an approval of all the other questions passed upon by the chancellor in that

case.

In Van Schuyver v. Mulford (supra) the will of M. gave to his wife the rent, income and profits of his estate during her life, and if they were insufficient for her support, he directed his executor and trustee to pay to her from the body of the estate what should be necessary from time to time, and in another clause he directed that after the death of his wife the rents, income and profits should be paid to his two daughters during life, after whose death the estate was devised to

Opinion of the Court, per PARKER, Ch. J.

[Vol. 162.

the issue of his said daughters. Parks v. Parks was cited upon the question presented by that will, but it has no bearing upon the question we are now considering. In Cowen v. Rinaldo (supra) the very question now before us was under consideration, and the court, upon the authority of Hawley v. James, and in a very careful opinion by the presiding justice of the court, holds that a trust providing for the collection of rents, income and profits of real estate, and, after the payment of certain legacies and the interest on mortgages, the applying of the remainder of the rents, together with the income and principal of the personal estate, to the paying off and discharging of the principal of mortgages on the real estate, was void. In Becker v. Becker (13 App. Div. 342) the court refused to follow this decision of the General Term and that in Hawley v. James, and elected instead to treat the paragraph which I have quoted from the long opinion of the chancellor in the Parks case as settling the question adversely to the decisions preceding and following it. The decision was made by a divided court and was not required, as I have attempted to show, by the decisions which have preceded it. The decision under review was made by the same court, which relied principally upon its previous decision in Becker v. Becker.

I have thus referred to all of the cases to which our attention has been called, in which the question up for decision was directly involved, and it is apparent that this court is at liberty, to say the least, to construe the statutes in accordance with the reasoning of Judge BRONSON in Hawley v. James, which not only results in producing harmony between sections 37, 38 and 55, but enables the statute to work out that policy which the revisers intended, a policy which in their wisdom was deemed for the public good and which has not since been seriously challenged.

But it does not follow that the entire trust should be held to be void because of the direction to unlawfully accumulate a part of the income. The rule is that where there are two trust objects, one of which is principal and the other alternative, and the latter only is void, the principal trust may stand

N. Y. Rep.]

and the other fall.

Memorandum, per VANN, J.

(Schettler v. Smith, 41 N. Y. 328; Tiers v. Tiers, 98 id. 568; Cross v. U. S. Trust Co., 131 id. 330.) That rule is applicable to this situation and should govern it. The primary object of this testator, by the creation of this trust, was to provide an income for his wife, the accumulation for the purpose of paying the mortgages being secondary. Indeed, nothing was to be applied in payment of the mortgages until after the sum named by the testator should in each year be paid in full to his wife, the disposition of the balance being a mere ulterior contingent direction, entirely distinct from the primary trust. That being so, the former is separable from the primary trust and will not be allowed to invalidate it, and after the purposes of the primary trust have been satisfied, the surplus income must be distributed among those entitled to the next eventual estate.

In all other respects we agree with the views expressed in the opinion written at the Appellate Division.

The judgment should be so modified as to accord with this opinion, and as thus modified affirmed, with costs to the appellants in all courts, and to the respondent in this court, payable out of the estate.

VANN, J. I concur in the result, because the will directs the application of rents, arising from lands not mortgaged, in payment of mortgages upon other lands, in violation of section 55 of the Statute of Uses and Trusts, which, in my opinion, authorizes the leasing of lands in the usual way, but for the purpose only of satisfying any charge upon the particular lands leased. I do not agree with the conclusion of the chief judge that a valid trust cannot be created to lease lands, in the ordinary sense of the word "lease," for the purpose of discharging liens upon the specific lands directed to be leased. I feel bound to follow the later case of Parks v. Parks (9 Paige, 107), where the question was before the court and was necessarily decided by the chancellor and, on appeal from his decree, by the Court of Errors also, rather than the earlier case of Hawley v. James (16 Wend. 62), where the

question, although ably discussed in one of the five opinions. delivered, was not before the court, and no opinion was adopted by the court.

GRAY, O'BRIEN and BARTLETT, JJ., concur with PARKER, Ch. J. MARTIN, J., concurs in result, and VANN, J., concurs in memorandum; HAIGHT, J., dissents.

Judgment accordingly.

JULIUS F. KRUG, Respondent v. JOHN PITASS et al., Appellants.

1. LIBEL ARTICLE REFLECTING ON PHYSICIAN LIBELOUS PER SE. An article in a Polish newspaper, concerning a physician and druggist largely patronized by Poles among whom the paper circulates, is libelous upon its face, where it refers to his profession and business, calls him a blockhead or fool, and appeals to the Poles not to trust themselves or their families to his professional care when he so hated them that he would not help them if he could.

2. PUNITIVE DAMAGES WHEN NOT RECOVERABLE. Punitive damages cannot be recovered in an action for libel for general malice, but only for such particular malice as existed when the libel was published and which had some influence in causing its publication.

3. MALICE OF ONE, WHEN NOT IMPUTABLE TO OTHER DEFENDANTS. In an action for libel against several defendants, the malice of one defendant cannot be imputed to the others without connecting proof.

4. RECOVERY OF PUNITIVE DAMAGES AGAINST ALL FOR THE GENERAL MALICE OF ONE OF THE DEFENDANTS. Where, in an action against several defendants for libel, to recover damages for the publication of an article libelous per se, each of the defendants testifies that he had no malice or ill-will toward the plaintiff, and the latter, in order to show express malice, justifying a recovery of punitive damages, is permitted to prove as against all, that several years before the publication, one of them, who knew nothing about the article until after it had been published, had made statements expressing contempt and ill-will for the plaintiff, never heard by or communicated to the other defendants before the publication, a judgment recovered against all must be reversed, as the general malice proved neither caused nor prompted the publication of the libel, and has, as it must be presumed, entered into the verdict against all in violation of the rights of each.

Krug v. Pitass, 16 App. Div. 480, reversed.

(Submitted January 29, 1900; decided February 27, 1900.)