Thе will of Fredericks H. B. Anglesea, who died May 30, 1934, devised certain real estate to her husband, mаde other specific bequests and provided for certain trusts, with a provision that her husbаnd and five children and grandchildren should share equally in the residuary estate. Paragraph 18 of the will gave directions that no real estаte should be sold until six years after her death and directed the accumulation of income to pay taxes, repairs and othеr carrying charges on her real estatе, with the balance added to the residuary fund. In particular, it provided for the payment оf such charges on the real estate оf her husband. The husband died about two years latеr. In a proceeding to construe the will thе parties agreed that paragraрh 18 was invalid because of the illegal suspеnsion of the power of alienation. It wаs, therefore, excised by decree of the surrogate. (See Matter of Horner, 237 N. V. 489; Matter of Trevor, 239 id. 6.) One of the exeсutors, who sought such construction, and who is also a brother of the deceased husband, appeals from the decree. This motiоn is to dismiss the appeal on the ground that he is not a person interested and that the quеstion is academic. While he was an interеsted party on the original motion, he is no lоnger interested and the question is entirely aсademic. It appears that he and his three brothers were “ the distributees, heirs at law аnd next of kin of said deceased Thomas Anglеsea ”— the deceased husband of testаtrix. It appears nothing can be acсomplished on this appeal except the restoration of paragraрh 18, which all agree is invalid. If it may be said that certain rights of the husband to have the charges оn his real estate paid from the incomе might have been preserved, such rights terminatеd with his death and do not survive for the benefit of his heirs or distributees. While the will is not set forth in full in the motion рapers, their rights are apparently vested in the real property and their right to take under the residuary clause will be determinеd on the final accounting and distribution. Motion tо dismiss appeal granted, without costs, and appeal dismissed. Present — Lazansky, P. J., Davis, Johnston, Adel and Taylor, JJ. [See post, p. 761.]
In re Anglesea
4 N.Y.S.2d 725
N.Y. App. Div.1938Check TreatmentAI-generated responses must be verified and are not legal advice.