28 N.Y.S. 327 | N.Y. Sup. Ct. | 1894
The testator, by Ms will, did not convert or attempt to convert Ms realty into money, out and out, but the title to the land, assuming the devise to be valid, passed to the trustees, with power to convert it into money, invest the proceeds, and apply the income therefrom. By the will the trustees have power to hold the realty, and apply the net rents as directed, until- the death of Edith C. Polhemus, when they are directed to convey the naked title to her children, subject to the right of the trustees to apply the net rents for the benefit of the life annuitants and legatees. The children of Edith G. Polhemus are not given the power of alienation until after the death of all of the cestuis que trustent. .By the fifth clause of the will the trustees are empowered, not directed, to sell the realty whenever they deem it most judicious for the interest of the devisees and legatees, invest the proceeds, and apply the income for the same purpose that the rents of the realty are directed to be applied. It is very clear that the testator attempted to authorize the trustees to hold the land in trust, in their discretion, until after the death of all of the annuitants, and until after the payment of the $4,000 legacy, and thus suspend the power of alienation for more than two lives in being at the death of the testator. The interests of the cestuis que trustent in the rents of the realty, and, in case it is sold, in the income to be derived from the proceeds of the sale, are not merely successive, one cestui que trust taking after the death of another, but they are concurrent as well. In this case the heirs of the testator are not before the court, nor are the cestuis que trustent, except as they are represented by the trustees, nor are the devisees of the remainder, except as so represented; and without their presence we do not think this court should authoritatively determine their rights, and we simply hold that the power of the trustees to convey an estate in fee simple is so doubtful that the purchasers should not be required to take the title tendered. In Abbott v. James, 111 N,