¶1(dissenting): I am unable to concur in all the conclusions reached by the court. While a trustee was named in the will, it occurs to me that the entire beneficial interest was devised to the three Canfield girls named in section three, and that it was the manifest intention of the testator that the survivor of the three should take the entire fee interest in the property. It appears that eight trusts were created by the will, and in every one of them, except that of section three, the testator made a disposition of the remainder of the trust, which implied that he intended a complete disposition of the property which was given for the sole use and benefit of the legatees. Besides, the trust became a passive and dry *61trust. The trustee had no function to perform except to maintain the property, pay taxes, make repairs and collect the rent, and the net balance thus derived was to be divided equally among the three beneficiaries. On September 15, 1892, about forty-two years ago, he resigned and abandoned the task, and while he named a successor, she never qualified. The will provides that the successor should be appointed by a last will. It is conceded that this was not done, and it is likewise conceded that the one he named did not qualify, and did not actually become a trustee. By this time the legatees had become familiar with the method of handling the property and themselves took charge of it. There was no trustee in charge after the resignation of F. R. Morton. The functions of the trustee had ceased, there was no trustee, and the beneficiaries were in charge of the property until the last survivor died. The trustee had exercised no functions, and there has been a complete cessation of his powers and duties since his resignation, and in view of the terms of the will, the trust became passive and dry. Thereafter there was no occasion to require a legal title in the trustee. It has been decided:
“Whatever may be the limitations imposed by an instrument which creates an active trust, and whatever estate the trustee takes in the beginning, the legal estate in the trustee is divested out of him, and passes into the cestui que trust, on the instant that the duties and powers of the trust, from any cause, cease to be active, or cease to require a legal title in the trustee.” (26 R. C. L. 1210.)
¶2The following cases bear upon that question: Doe v. Considine, 6 Wall. 458; French v. Edwards, 21 Wall. 147; Lincoln v. French, 105 U. S. 614; Robinson v. Pierce, 118 Ala. 273; Graham v. Whitridge, 99 Md. 248; 39 Cyc. 224; Perry on Trusts, 7th ed., § 312; Hill on Trustees, 4th Am. ed., p. 360; 27 Am. & Eng. Enc. of L., 1st ed., 113, 124. •
¶3Before Mary died the title under the authorities vested in her. She was at liberty to convey or will the property to the adopted child of Elizabeth, or to anyone else, and the fee was thus passed to the adopted child. There was no issue of any of the three nieces, and- that provision of the will was without effect.
¶4I am of opinion that the judgment of the trial court was correct and should be affirmed.
¶5(concurring): Paragraph 3 of the will gave the beneficiaries’ income. In paragraph 18 income was defined as net income, after payment of taxes, repairs, insurance and unspecified necessary expenditures. Income was treated as synonymous with rent, so the property was to be rented, taxes were to be paid, repairs were to be made, insurance was to be kept up, and necessary incidental expenses were to be paid. The remainder of the gross income constituted net income to be paid to the beneficiaries.
¶6The production of gross income by renting the property, the payment of taxes, the making of repairs, the keeping up of insurance, the looking after incidental matters, and the payment of net income to the beneficiaries, constituted duties of the trustee. They were active duties of exigent type, requiring incessant fulfillment.
¶7The beneficiaries were to receive net income during their lives, and the survivor was to receive net income during her life. The duties of the trustee were to continue until death of the survivor. If the will of the testator was something to be respected, the trustee could not end management necessary to production of net income by resigning. His successor could not end management necessary to production of net income by failing to qualify and act.
¶8Because the will required management until death of the surviving beneficiary, it was not possible for the trust to become dry before that time. The trustee, nor the substitute trustee, nor the beneficiary, nor all of them, had power to defeat the! will and increase a gift to a beneficiary of net income only, from property, for life only, to fee-simple estate in the property, to accrue while the beneficiary was still alive.