Opinion of the Court, per ANDREWS, J. were made in sums of $500, or less, and therefore were entitled, under the rules of the bank to a higher rate of interest than deposits of a larger amount, is not inconsistent with a purpose on the part of the testator to create a personal trust of portions of his money in bank for the future benefit of the persons indicated. The deposits inade in the name of the testator as trustee without naming any beneficiary, or in his name as trustee for A., B., C., D., etc., do fairly indicate a purpose not to part with the beneficial ownership of the deposits, but they do not show that he had the same intention in making the deposit for the plaintiff, or other known persons. On the contrary, they tend to support the inference of a different intent; as, if the same intention existed, deposits to the credit of the letters of the alphabet, or to his own credit as trustee, naming no beneficiary, could have been made indefinitely. The fact that the deposits for the plaintiff and others were subsequently, in 1867, drawn out by Dr. Bailey, is not legitimate evidence that he did not intend when the deposits were made to create a beneficial trust for the beneficiaries named. If the withdrawal was with intent on his part to ignore the trust and to convert the money to his own use, it might be competent evidence of a change of purpose, but it throws no light on the original transaction. We think the facts shown on the part of the defendant, if competent at all, were so vague and indeterminate that they cannot be considered as raising a.conflict as to the intention of the testator, or in weakening the strong affirmative evidence of intention given on the part of the plaintiff. The court was therefore justified in refusing to submit the question to the jury. The trust once established, and no power of revocation having been reserved, it was within the authorities irrevocable. (Minor v. Rogers, 40 Conn. 512; 16 Am. Rep. 69; Martin v. Funk, supra.) We think the defense of the statute of limitations was not made out, supposing the statute applies in such a case. The withdrawal of the deposit, in 1867, was not so far as the case discloses in hostility to the trust. The testator held the legal Statement of case. title to the fund as trustee, and it was competent for him to withdraw it to make another investment, or for any purpose not inconsistent with the trust. (Boone v. Citizens Savings B'k, 84 N. Y. 83.) There is no evidence that he ever repudiated the trust, and no presumption that he did so can be indulged to let in the defense of the statute of limitations. The right of action upon the facts presented did not accrue until the testator's death, which presumptively upon the evidence was the period when the trust terminated. We think interest was properly allowed from the time of the withdrawal, and that the exception does not raise any question as to the rate. The judgment should be affirmed. All concur. 95 212 114 553 95 212 130 454 WILLIAM E. LEAVITT, as Executor, etc., Respondent, v. FREDE- An adjudication upon conflicting claims, made by several defendants, to an interest in the subject of an action, rendered by a court upon the report of a referee authorized to report on such claims, is equally conclusive, as between the defendants who appeared and litigated their claims, as in the case of a similar issue between the plaintiff and the defendants. In an action to obtain a decision as to the validity of a clause in a will attempting to create a trust, it appeared that at the time of the testator's death he was a defendant in a partition suit, having an interest in the premises, which was included as part of the trust estate. After his death the beneficiaries under his will, his heirs at law and next of kin, all of whom were parties herein, were brought in and made parties defendant in said suit, and they each appeared therein. An interlocutory judgment was rendered directing a sale of the premises, and a referee was appointed to ascertain, among other things, the rights and interests of said defendauts. Upon a hearing before the referee, attended by all of the parties, it was determined that the clause in question was wholly void. Exceptions were filed by the beneficiaries, a motion for final judgment was made upon notice to all of the parties, who appeared and were heard, the report was confirmed and final judgment ordered, directing the proceeds of the share belonging to testator's estate to be paid to his heirs Statement of case. at law as in case of intestacy. Held, that said judgment, not having been reversed, was final and conclusive between the parties as to the validity of the clause in question, and the parties were estopped from raising the question herein. (Argued February 7, 1884; decided February 26, 1884.) APPEAL from portion of judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made March 30, 1883, which affirmed at judgment entered upon a decision of the court on trial at Special Term. This action was brought to obtain a construction and a determination as to the validity of certain clauses in the will of Gardiner H. Wolcott, deceased. The portions of the will in question and the material facts are set forth in the opinion. Dexter A. Hawkins for appellant. The court must determine from the will itself what was the testator's intention, and then carry that intention into effect so far as it is in accordance with the law; but so far as it is not in accordance with law, declare it void. (Everitt v. Everitt, 29 N. Y. 92; Beekman v. Bonsor, 23 id. 310, 311.) The contents of the will show that the testator did not intend to die intestate as to any part, principal or income, of his property. (Morse v. Morse, 85 N. Y. 53.) In a valid express trust the whole estate is vested in the trustees in law and in equity, subject only to the execution of the trust, and the persons for whose benefit the trust is created take no estate, legal or equitable, but may enforce the performance of the trust in equity. (1 R. S. 729, § 60; Knox v. Jones, 47 N. Y. 390; Cotton v. Fox, 67 id. 348; Amory v. Lord, 9 id. 411.) The use of the words "it is my wish" or "it is my wish and will," create trusts in favor of the parties to be benefited. (Perry on Trusts, § 112; Gilman v. Redington, 24 N. Y. 15; 1 R. S. 729, § 60; Leggett v. Perkins, 2 Comst. 297.) The words in the will "shall be divided between my brother Frederick and sisters Elizabeth Statement of case. and Alice, share and share alike for life," taken by themselves alone would create a tenancy in common. (2 Jarm. on Wills, 162, 164; Williams on Exrs. 1463, 1465; Tuckerman v. Jefferies, 11 Mod. 108, 109; Scott v. Bergeman, 2 P. Wms. 68; Malcolm v. Martin, 2 Brown's Ch. Cas. 45; Armstrong v. Eldridge, id. 215; Doe v. Webb, 1 Taunt. 234; Green v. Stephens, 12 Vesey, 418; Doe v. Abey, 1 M. & S. 428; Pearce v. Edmeades, 3 Y. & C. Exch. 246; Doe v. Wainright, 5 T. R. 427; Townley v. Bolton, 1 M. & K. 148; Begly v. Cook, 3 Drewry, 662; Alt v. Gregory, 2 Jur. 577; Cranswick y. Pearson, 31 Beav. 624; Wood v. Draycott, 2 N. R. 55; Loring v. Coolidge, 99 Mass. 191; 2 Roper on Leg. 1397; 2 Jarm. on Wills, 164; Williams on Exrs. 1465; Coster v. Lorillard, 14 Wend. 342, 343; Willis v. Douglass, 10 Beav. 47; Arrow v. Mellish, 1 De G. & S. 355; Hawkins v. Ilamerton, 16 Sim. 410; Armstrong v. Eldridge, 3 Br. Ch. 215.) The terms of the will show clearly that it was the intention of the testator to vest his whole residuary estate in the trustees as a single trust, and that that estate should continue as a unit in the trustees as a single trust at least until the end of five lives, and possibly six. (Coster v. Lorillard, 14 Wend. 265; Hawley v. James, 16 id. 228, 243, 241; Harris v. Clark, 3 Seld. 242; Knox v. Jones, 47 N. Y. 390; Colton v. Fox, 67 id. 348; Amory v. Lord, 9 id. 411, 415; Warner v. Durant, 76 id. 136; Everitt v. Everitt, 29 id. 39; 2 Wms. on Ex. 1335; Everitt v. Everitt, 29 N. Y. 75; 1 Jarm. on Wills, 760; Gilman v. Redington, 24 N. Y. 9.) The trust of the entire residuary estate for five lives and a minority suspends for that period the absolute ownership of personal property, and is for that reason void, being against the statute of perpetuities. (R. S., §§ 14, 15, p. 723; id. 773, §§ 1, 2; id. 730, § 63; Costar v. Lorillard, 14 Wend. 265; IIawley v. James, 16 id. 61; Amory v. Lord, 9 N. Y. 416; Gott v. Cook, 7 Paige, 540, 522; Hallett v. Thompson, 5 id. 583; Clute v. Bool, 8 id. 83; How v. Van Schaick, 7 id. 222; Degraw v. Clarkson, 11 id. 136; Campbell v. Foster, 35 N. Y. 371-2.) The trust term for five Statement of case. lives and one minority is a present vested estate, and is subject to the statutory inalienability during the whole period of its limitation. (1 R. S. 730, § 65; Hawley v. James, 16 Wend. 121.) A trust term extending beyond two lives in being at the date of its creation and minority of remainderman is void in toto. (Hawley v. James, 16 Wend. 60; Post v. Hover, 33 N. Y. 598, 601; Gott v. Cook, 7 Paige, 521; Harris v. Clark, 3 Seld. 242; Amory v. Lord, 9 N. Y. 413; Colton v. Fox, 67 id. 348; Van Nostrand v. Moore, 52 id. 18.) If the trust be void the property affected by it descends to the heirs at once. (Brewer v. Brewer, 11 Hun, 153; Field v. Field, 3 Sandf. Ch. 528; Coster v. Lorillard, 14 Wend. 320; Bean v. Hockman, 31 Barb. 78; Harris v. Clark, 3 Seld. 242.) The trust being void, the beneficial interest of the brother and two sisters for life in the income or interest necessarily falls with it. 2 Roper on Leg. 1397; 2 Jarm. on Wills, 164; Williams on Exrs. 1465; Tuckerman v. Jefferies, 11 Mod. 108-109; Scott v. Bargeman, 2 P. W. 68; Malcolm v. Martin, 3 B. Ch. 45; Armstrong v. Eldridge, id. 215; Doe v. Webb, 1 Taunt. 234; Doe v. Abey, 1 M. & S. 428; Pearce v. Edmeades, 3 Y. & C., Ex. 246; Doe v. Wainright, 5 T. R. 427; Townley v. Bolton, 1 M. & K. 148; Begley v. Cook, 3 Drewry, 662; Alt v. Gregory, 2 Jurist, 577; Cranswick v. Pearson, 31 Beav. 624; Wood v. Draycott, 2 N. R. 55; Loring v. Coolidge, 99 Mass. 191; Schnarr v. Henning, N. Y. D. R., Dec. 23, 1882.) The trusts of the will being so far void as to overturn the main design. of the testator, the overthrow of the residue necessarily follows; even if the latter were not involved in the fate of the void trust devise to the executors. (Arnold v. Gilbert, 3 Sandf. Ch. 532; Coster v. Lorillard, 14 Wend. 265; Hawley v. James, 16 id. 274; Thompson v. Cendening, 1 Sandf. Ch. 387; Amory v. Lord, 9 N. Y. 411; Knox v. Jones, 47 id. 390; Colton v. Fox, 48 id. 318; Bean v. Hockman, 31 Barb. 78; Brewer v. Brewer, 11 Hun, 151, 72, N. Y. 602; Estate of J. P. Moore, N. Y. Sur. Ct., Nov. 18, 1881, reported in Daily Reg. Nov. 1881; Schnarr v. Henning, N. Y. Daily Reg., Dec. 23, 1882; Von Schuyver v. Mulford, |