Opinion
November, 1922.
Simon M. Platt, for petitioner.
Edward J. Martin, for Katherine Leahy Bradden and others.
David B. Baum, special guardian.
The testatrix evidently intended by the 7th paragraph of her will to create seven separate trusts for the benefit of her children. The language of that paragraph is as follows: " Seventh: All the rest, residue and remainder of my estate, * * * I give, devise and bequeath to my executors, * * * in trust nevertheless as trustees to collect and receive the rents, income, issues and profits thereof and divide the same when so collected * * * into seven equal parts and to give one full equal part to each of my following children, viz., Esther, Mamie, Edward, Lucy, Ida, Katherine and Columban." These provisions, however, must fail, because the duration of the several trusts was not fixed and cannot be determined. The trust is not one authorized by section 96 of the Real Property Law. Under subdivision 3 thereof the trust must be measured by the life of the beneficiary.
Paragraph 8 of the will provides: "I hereby give, grant and confer upon my said trustees full power and authority to mortgage, lease and sell either at public or private sale at any and all times when they deem advisable, any and all my real estate and when the same is sold to divide the proceeds thereof into seven equal parts and to give one equal part to each of my following children, viz., Esther, Mamie, Edward, Lucy, Katherine and Columban. The seventh or remaining share or part I give, devise and bequeath to my said executors in trust nevertheless as trustees to apply the principal and the income, issues and profits of said principal to the support and maintenance of my beloved daughter, Ida, for and during her natural life and, if on her death there remains unused any of said principal thereof, to divide said unused principal equally among her issue surviving. If my said daughter should die leaving her no issue her surviving, then I direct my said trustees to divide said unused principal among the survivors of my aforesaid children, Esther, Mamie, Edward, Lucy, Katherine and Columban." Under these provisions the property vested in the children with the exception of Ida, subject to the power of sale in the executors. Ray v. Fowler, 200 A.D. 155; Van Cott v. Van Cott, 167 id. 694; Matter of Tienken, 131 N.Y. 391; Real Property Law, § 97. This power of sale given to the executors is clearly mandatory, although the time of sale is within their discretion. Furniss v. Cruikshank, 230 N.Y. 495. The power of sale should be executed by the executors as soon as possible, in view of its imperative nature and the terms of the will. The testatrix died intestate as to her personalty, if any, included in her residuary estate. As to her realty, six-sevenths thereof vested in certain of her children on her death under the rule above stated. A valid trust was created by the 8th paragraph of her will for the benefit of Ida, in the remaining one-seventh. Application for the appointment of substituted trustees granted. Submit decree on notice accordingly.
Decreed accordingly.