Opinion of the Court, per FINCH, J. by a performance of the trust. (Brennan v. Wilson, 71 N. Y. 502, 507; Briggs v. Davis, 21 id. 574; Metcalf v. VanBrunt, 37 Barb. 621, 627; Cruger v. Halliday, 11 Paige, 314; Em. Ind. S'v'gs B'k v. Roche, 93 N. Y. 380; Wetmore v. Porter, 92 id. 76, 84.) L. L. Van Allen for respondents. A transfer of the claim belonging to the old firm to the new one is prohibited by statute. (U. S. R. S., § 3477.) FINCH, J. In accordance with the opinion of the General Term, rendered on a previous appeal, the referee has dismissed the plaintiff's complaint, although without any change of his findings of fact. The decision virtually concedes that title to the claim in controversy passed to the plaintiff as assignee by force of the general assignment made by Lockwood & Co., but holds that the trust was ended and discharged, as the result of the settlement of December 15, 1874, so that the plaintiff ceased to be assignee, and lost all right to sue in that capacity. The plaintiff, once vested with title to this demand against the government, has never transferred or assigned it to anybody, and remains its owner in his trust capacity, with the right to collect it, unless in some manner its ownership has vested elsewhere. The papers executed in 1874 are claimed to have worked such a result by operation of law, but we do not agree with that conclusion. Lockwood & Co., for certain expressed considerations, released to the assignee as an individual, and on account of debts due him from the firm, all their right and interest in the assets which passed by the assignment. They had no title to any of them. Their sole remaining right was to any surplus proceeds which might be left after all the trusts had been fulfilled. That right, and that only, they transferred to the plaintiff as an individual. As a creditor of the firm he was already both trustee and cestui que trust. The arrangement made enlarged his rights in the latter character. On a settlement of his accounts as trustee he became thus entitled to retain not only his own debt but any surplus remaining after Opinion of the Court, per FINCH, J. all debts were paid and discharged, and this release was made more valuable to him by the agreement of the assignors to pay off all outstanding debts of the firm, and by the bond of indemnity conditioned for the faithful performance of that agreement. But this arrangement did not necessarily transfer to him as an individual the assets which he held as trustee. To reduce them to possession he must sue for them by the only title which he had, which was that of assignee, since his individual rights, whether greater or less, existed only as a beneficiary in the assets thus held. How large or small his ultimate personal interest in them would prove to be depended upon the exigencies of his trust. The debts protected by the assignment were not all paid. The referee finds that some liabilities of the firm were outstanding. While Lockwood & Co. agreed to pay them and a bond was given to the assignee as indemnity against them, that did not discharge his trust obligation to the creditors, or put an end to his trust duties. The bond might prove to be an inadequate protection. Then, too, the individual creditors of the members of the firm had rights under the assignment by its terms, and against these the bond was no protection. As to such debts the referee finds there is no proof that the trust has been performed. He further finds that the plaintiff has never accounted; that it is not shown that he has advertised for claims nor that his bond has been discharged; that he has never resigned his trust nor been removed. While any of the assigned assets remain to be collected for the benefit of persons entitled to share in the distribution. the trust is not ended, and the trust duties continue. Upon the facts found we think the title of the assignee was not lost or merged and that as such he was entitled to collect this claim. (Brennan v. Willson, 71 N. Y. 502; Em. Ind. Sav. Bank v. Roche, 93 id. 380.) That in the end such collection, through the proper and lawful settlement of the trust, might inure mainly, or even wholly, to his personal benefit does not weaken or destroy his title as trustee. On the argument before us the respondent has not conceded the plaintiff's original title under the assignment. A portion Statement of case. of the money restored by the government was paid by the old firm of Lockwood & Co., and as to that, it is claimed the plaintiff cannot recover. Such prior firm was dissolved by the death of Le Grand Lockwood, sen., but all its assets passed to the survivors who constituted the new firm. They became the legal owners. The referee finds that they took possession of the assets and assumed the liabilities of the old firm and continued the business in the same partnership name; that before the death of the deceased partner he had withdrawn all his share of capital and assets and was still a debtor to the firm. The new firm having legal title to the assets could transfer them (Egberts v. Wood, 3 Paige, 525; Nehrboss v. Bliss, 88. N. Y. 600; Hoyt v. Sprague, 13 Otto, 613; Palmer v. Myers, 43 Barb. 513), and if the executrix of the decedent had any equity to require their application to debts of the old firm as distinguished from those of the new, which her action made doubtful, she released the assignee from all such claims by her general release, and so ratified, if that were needed, the transfer to the assignee and freed the assets in his hands from any such claim. Upon the record we see no reason for denying the right of the assignee to recover the whole amount of the claim, less the charge paid to Colgate for services rendered in the collection from the government. The judgment should be reversed and a new trial granted, costs to abide the event. All concur. JOHN L. HOBSON et al., Executors, etc., v. RUTH C. HALE et al., The provisions of a will must at least be of such a character as to leave no H., a citizen of Massachusetts, died in that State, leaving a will which was there admitted to probate. Said will, after various legacies and devises, Statement of case. * and after providing for the payment of life annuities to twelve different persons, contained this provision : "As to the residue and remainder of all my estate, both real and personal, not herein otherwise disposed of, it is my will that the same be and remain in the care and custody of my said executrix, and executors, and trustees, and their successors, well and safely invested until the decease of the last survivor of the life annuitants * * and that then the said residue and remainder with all the accumulated interest thereof shall be divided equally among my grandchildren, per stirpes." The will was valid under the laws of Massachusetts; it contained no express direction for the conversion of the real estate into personalty or for the sale of the real estate. The testator died seized of valuable real estate in this State, and also owning a large estate, real and personal, in Massachusetts. In an action for the construction of the will, held, that there was no such expression of intent upon the part of the testator as to present a case of equitable conversion; that under said provision no title could vest in the beneficiaries until the final division of the estate on the death of the last life annuitant; that so far as the provis ion applied to the real estate in this State, its validity was to be determined by the law of this State, and as it worked an unlawful suspension of the power of alienation, it was void (1 R. S. 723, §§ 14, 15); and that upon the death of the testator the title to said real estate descended to his heirs at law. It seems that if a power of sale could be implied, it would not cure this invalidity. Also held, that said clause was repugnant to the provision of the Revised Statutes prohibiting accumulations, except for the times and purposes therein expressly permitted. (1 R. S. 726, § 37, 38.) Mower v. Orr (27 Hare, 473), Cookson v. Reay (5 Beav. 22), Earlom v. Saunders (Amb. 41), Cowley v. Hartstonge (1 Dow. 361), Hereford v. Ravenhill (5 Beav. 55), Burrell v. Baskerfield (11 id. 525), Power v. Cassidy (79 N. Y. 602), Lent v. Howard (89 id. 169), Manice v Manice (43 id. 303), distinguished. (Argued March 3, 1884; decided April 29, 1884.) APPEAL from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made May 11, 1883, which affirmed a judgment entered upon a decision of the court on trial at Special Term. The nature of the action and the material facts are stated in the opinion. Theodore W. Dwight for appellants. Equitable conversion may take place by implication as well as by express words. Statement of case. The positive direction to convert, which is essential, may be implied. (Snell's Prin. of Eq. 142; Fletcher v. Ashburner, 1 W. & T. L. Cas. in Eq. 659, 676; 1 Brown's Ch. Cas. 497; Cookson v. Cookson, 12 C. & F. 121; Thornton v. Hawley, 10 Ves. 129; Grieveson v. Kirsopp, 2 Keen, 653; Davies v. Goodhow, 6 Sim. 585; Burrell v. Baskerfield, 11 Beav. 525; Johnson v. Arnold, 1 Ves. 168; Cowley v. Hartstonge, 1 Dow. 361; Mower v. Orr, 7 Hare, 473; Burr v. Sim, 1 Whart. 252, 262; Dodge v. Williams, 46 Wis. 70, 97; Gould v. Taylor Orphan Asylum, id. 106, 117; Cook v. Cook, 20 N. J. Eq. 375; Craig v. Leslie, 3 Wheat. 563; Dodge v. Pond, 23 N. Y. 69; Earlom v. Saunders, Amb. 240.) Under the provisions of the will, the executors could only invest in government securities or bonds and mortgages upon real estate. They could not invest in land. (Worcester's Dict., “Will,” 1; King v. Talbot, 40 N. Y. 76; Adair v. Brimmer, 74 id. 551, 553; Ackerman v. Emott, 4 Barb. 626; Ormiston v. Olcott, 84 N. Y. 339; Mower v. Orr, 7 Hare, 473; Cookson v. Reay, 5 Beav. 22; Cowley v. Hartstonge, 1 Dow. 361; Rigden v. Pierce, 6 Madd. 353; Dickinson v. Playor, C. P. Cooper's Cases, 178; Wilkes v. Steward, Cooper, 6; Cock v. Goodfellow, 10 Mod. 489-496; Lewin on Trusts, 340; Byrne v. Baer, 86 N. Y. 210-220.) The provision that the whole fund with the accumulated interest is to be "divided. equally," and distributed among the respective beneficiaries, points to a conversion. (Burrell v. Baskerfield, 11 Beav. 525, 532, 533; Featherstonhaugh v. Fenwick, 17 Ves. 298; Grieveson v. Kirsopp, 1 Keen, 653; Burr. L. Dict., tit. Distribution; Bouv. L. Dict., tit. Distribution.) The direction concerning release of dower in the fourth section of the will is not inconsistent with the view that the executors had a power in trust to sell. (Malloney v. Horan, 49 N. Y. 111.) If there be two possible constructions of the twenty-second section of the will, one of which will make the provision valid, and the other which will make it void, it is the duty of the court to adopt the construction which will make the clause valid. (Co. Litt. 42, 183; Churchwardens' Case, 10 Co. 67, b; Archibald v. Thomas, |