Opinion
February 19, 1926.
Thompson, Koss Warren [ George Flint Warren, Jr., of counsel], for the petitioners.
In this accounting proceeding the trustee requests a construction of testator's will. After giving the residuary estate to his executors in trust for the benefit of his widow during her life, the will disposes of the remainder thereof in the following language: "At the death of my wife I direct my executors or the survivor of them to divide all the remainder of my estate real and personal between my surviving children or their legal representatives * * *. In the case of my son Herbert J. Smith I direct that in the final division of my estate his share shall be securely invested and that he shall be allowed only the income of it for his support during his lifetime * * *."
There is no further disposition of Herbert's share of the remainder contained in any other provision of the will. The widow, who survived the testator and enjoyed the income from the trust estate during her lifetime, recently died and all of the four children of their marriage survive her.
The questions raised are (1) whether or not a valid trust in one-fourth of the residuary estate was created by the above-quoted language for the benefit of Herbert J. Smith; (2) if so, who is the trustee; (3) who is entitled to the remainder interest on the termination of said trust; and (4) has the surviving trustee now accounting the power to sell the real property included in the trust estate?
By the language of the first sentence above quoted, the testator clearly intended to give an equal share of the residue to each of his surviving children, including the son Herbert. But by the next quoted sentence, he expressly limited and cut down the primary absolute gift to Herbert by carving out a life estate in trust for his benefit. ( Mee v. Gordon, 187 N.Y. 400; Close v. Farmers' Loan Trust Co., 195 id. 92.) The remainder, however, after the death of Herbert was wholly unaffected by the trust condition attached to his share. ( Felter v. Ackerson, 35 A.D. 282.) Such remainder vested, therefore, in Herbert immediately on his mother's death, and is alienable, devisable and descendible as he may choose.
No power of sale is expressly conferred upon the executors and trustees, but from the facts and circumstances of the estate, and the division directed to be made, the possession of such power will be implied. ( Mee v. Gordon, supra, 407; Cahill v. Russell, 140 N.Y. 402.)
I hold, therefore, that (1) a valid trust in one-fourth of the residue was created by testator's will for the benefit of Herbert J. Smith and for his life; (2) that share should now be paid to the surviving trustee to be "securely invested" and held by him in accordance with the terms of the will; (3) the remainder interest in that share is vested in Herbert J. Smith; and (4) for the purpose of dividing the remainder of the trust estate the surviving trustee has a power of sale over the real property included in the trust estate.
Decree signed in accordance with this decision.