Opinion
May 22, 1944.
Appeal from Kings County Surrogate's Court.
Present — Close, P.J., Hagarty, Johnston and Aldrich, JJ.; Carswell, J., not voting. [See post, p. 1000.]
There is no controversy among the parties within the meaning of section 19 of the Decedent Estate Law. The provision for the benefit of the granddaughters in paragraph "Fifth" of the will created a vested estate in them and each is entitled to her share of the estate absolutely. ( Kernochan v. Marshall, 165 N.Y. 472; Radley et al. v. Kuhn et al., 97 N.Y. 26; Shannon v. Pentz, 1 App. Div. 331.) The provision directing that the shares of the said granddaughters be held in trust does not create a valid trust. It is purely passive and the executors took nothing thereunder. (Real Property Law, § 93; Jacoby v. Jacoby, 188 N.Y. 124; Woodgate et al. v. Fleet et al., 64 N.Y. 566; Matter of Rogers, 251 App. Div. 478; Steinert v. Steinert, 161 App. Div. 841; Matter of De Rycke, 99 App. Div. 596.)