220 A.D. 126 | N.Y. App. Div. | 1927
The questions presented upon this appeal concern the appointment of successor trustees under a will and the payment out of the estate of an allowance to a special guardian.
The will in question was probated in 1892 and named as the three executors and trustees, “ my wife, Catherine Frech, my son John J. Frech, Jr., and my friend Joseph F. Umpleby, or the one who may qualify.” Only the widow qualified. She died in November, 1925, and, upon petition, the Surrogate’s Court thereupon 1 appointed three successor trustees to sell the real estate and pay over the proceeds according to the shares provided in the will. The owner of a one-sixth interest in the estate objected to the , appointment of successor trustees, claiming that the will provided "for a sale only by the original trustee and that the corpus of the estate was in the remaindermen subject to the interest of the widow „as life beneficiary, and hence no necessity or authority existed for the appointment of successor trustees. This presents a question of the intention of the testator as revealed by the language of the will. In the 1st paragraph he gives to his executors and trustees for the life of his widow all his real and personal estate in trust, to invest, reinvest, rent out and manage the same and pay the net income arising therefrom to his wife for her fife. It will be noted that the property was thus given to these trustees only for the life of the wife, and there was no power given them in this trust other than to rent out. and manage the real estate. The words “ invest ” and “ reinvest ” clearly have reference to the personal property, since there is no power of sale given in connection with the trust. Upon the death of his widow he directs that all his real estate and personal property shall be divided among his children share and share alike, and he gives and devises the same to them. It is here to be noted that the real estate, as well as the personal property, is to be divided among his children, and he directly devises and gives the same to them as a present devise and gift, subject to the life interest of the widow. Particularly is this indicated by the use of the word “ devise,” The estate in
The testator next takes up the question of the power of sale in a separate paragraph, where he says: “ I give to my said executors and trustees, or the one who may qualify, full power to sell and
The decree appealed from should, therefore, be reversed in so far as it appoints successor trustees, and otherwise affirmed, with ten dollars costs and disbursements to the appellant on this appeal.
Dowling, P. J., Merrell, McAvoy and Proskauer, JJ., concur.
Decree in so far as it appoints successor trustees reversed, and in other respects affirmed, with ten dollars costs and disbursements of this appeal to the appellant, and proceeding remitted to the surrogate for further action in accordance with opinion.