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App. Div.] SECOND DEPARTMENT, MARCH TERM, 1899. mortgage had been paid by the money realized on the $3,000 mortgage of the respondents. This would relieve hinn from liability on the bond. As we gather from the figures, the amount on deposit would not be sufficient to pay that mortgage in full, even if the respondents' mortgage were declared subordinate.

For the adıission of this incompetent testimony the judgments must be reversed, unless the other evidence is sufficient to establish the respondents' claim. The Gearon mortgage of $1,200 was not acquired by Nafis until after he had assigned the $3,000 mortgage to the respondents. The priority of the respondents' mortgage to the Gearon mortgage was upheld by us on the previous appeal, on the ground that Nafis, by his representation to the respondents that. the mortgage he assigned to them was a first mortgage, had estopped himself from claiming precedence for the $1,200 mortgage which he subsequently acquired. With the testimony of Mrs. Greene stricken out, there is no proof of any representations by Natis. The superiority of the respondents' mortgage over the Squire mortgage was declared by us on the ground that both securities represented but a single debt, and that after the assignment of the $3,000 mortgage to the respondents the $1,800 mortgage represented no obligation or security which Nafis could assign. But with the testimony of Kearney and McCann stricken out, the evidence is insufficient to show the fact on which we predicated our previous decision, that is that there was but a single debt.

For these reasons the judgments must be reversed and a new trial granted, costs to abide the final award of costs.

All concurred.

Judgments reversed and new trial granted in each case, costs to abide the final award of costs.

SECOND DEPARTMENT, MARCH TERM, 1899.

[Vol. 38.

ROBERT SPITZER, Appellant, v. ALBERT SPITZER, Respondent,

Impleaded with Others.

Will - a decise to an executor to collect and pay over the rents until a sale, creates a

trust - a limit on the price, which may be changed by the beneficiaries, does not violate the statute against perpetuities - a failure to sell within tuco years.

A testatrix by her will devised certain real estate to her executor in trust and

directed him, as soon as possible after her death and within two years after the probate of the will, to sell the real estate “at public or private sale and for the best price that can be realized, but for not less than eighteen thousand five hundred dollars, without the written consent" of the testatrix's five sons or the survivors of them, and, upon the sale of the real estate, to divide the proceeds equally among said sons, and in the event of the death of any oi them prior to such sale, to hold his share in trust during the minority of his issue, should he leave any, and, if he left none, to pay it over to the other sons in equal proportions. Until the sale of the real estate, the executor was directed to collect the rents thereof, and at the end of each year to divide the net income among the testatrix's sons, and in the event of the death of any of said sons before such division, to make the same disposition of the income as was directed

to be made of the proceeds of the sale. lleld, that the heirs of the testatrix were not entitled to maintain an action for

the partition of such real estate, as the will created an express trust in such

real estate and not merely a power in trust; That the fact that the trust was to continue until the sale, and that the executor

could not sell for less than the stipulated price without the written consent of the testatrix's sons, did not render the trust void as in violation of the statute against perpetuities, since the executor could sell for any price if he obtained

the consent of such sons; That the power to sell had not ceased by the executor's failure to exercise it

within two years.

APPEAL by the plaintiff, Robert Spitzer, from an interlocutory judgment of the Supreme Court in favor of the defendant, Albert Spitzer, entered in the office of the clerk of the county of New York on the 15th day of July, 1898, npon the decision of the court, rendered after a trial at the New York Special Term, overruling the plaintiff's demurrer to the said defendant's answer.

The 4th clause of the will referred to in the opinion is as follows:

Fourth. I give and devise unto my executor hereinafter named, the house and lot now owned by me and known as No. 975 Park

App. Div.] SECOND DEPARTMENT, MARCH TERM, 1899. avenue, in the city of New York, in trust, liowever, for the following uses and purposes :

“I direct my executor, as soon as possible after my death, and within two years after this my last will and testament shall have been admitted to probate, to sell my said house at public or private sale, and for the best price that can be realized, but for not less than eighteen thousand five hundred dollars, without the written consent of my sons, Oscar L., Albert, Robert, Henry L. and Edward L. Spitzer, or the survivors of them; and upon the sale of said house I direct him to divide the proceeds realized equally among my said five sons; but should any one of my said sons die prior thereto, leaving no lawful issue him surviving, my said executor shall pay the share otherwise hereby payable to him to my other said sons in equal proportions; but should any of my said sons die prior thereto or before my death, leaving lawful issue him surviving, I then direct my executor to divide the share hereby payable to him into as many equal parts as there may be lawful living children of my said deceased son, and as to said equal parts I direct my executor to invest the same for the benefit of the said children, to invest one equal part during the minority of one child, and to pay the said part with its accumulations and profits over to the said child upon its attaining its full age, and to invest a second part during the minority of another child and to pay the same with its accumulations and profits over to said child upon its attaining its full age, and so on.

“Until the said house shall be sold I direct my executor to collect the rents and incomes therefrom, and to pay out of said rent and income the interest on mortgage, taxes, water rents and all expenses that may be necessary connected with the said house, and at the end of each year to divide the balance, if there be any, among my said five sons mentioned equally; but if any of my said five sons should die prior to said division leaving no lawful issue him surviving, I then direct that the share that would hereby be payable to him shall be divided equally among the survivors of my said five sons; and should any of my said five sons die before said division or before I do, leaving lawful issue him surviving, I then direct my executor to retain the share that would hereby be payable to such deceased son until the said honse shall be sold, and then to invest said share for the benefit of such lawful issue of such deceased child in the same

SECOND DEPARTMENT, MARCH TERM, 1899.

(Vol 38.

manner and together with the share my said executor is directed to in vest for the benefit of such lawful issue when the said house shall be sold.

"Until the said house shall be sold I direct the apartment occupied by me therein at the time of my death shall be reserved free of rent for my sons Henry L. and Edward L. Spitzer, or the survivor of them, and they shall be permitted to use the same as a home.”

This appeal was transferred from the first department to the second department.

Henry Cooper, for the appellant.

Jacob Marks, for the respondent.

CULLEN, J.:

The plaintiff demurred to the answer; the defendant retorted by asserting that the complaint did not state a good cause of action. This contention the court below upheld, and rendered judgment in favor of the defendant. The action is for partition, and the only question is whether, under the 4th clause in the will of the ancestor of the plaintiff, the defendant, as executor, took title to the real estate mentioned in that clause. We think he did. There is a devise in express terms to the executor, and he is directed to collect the rents and divide them among the beneficiaries until such time as he shall have sold the property. This is an express trist, not merely a power in trust. It is, therefore, unnecessary to consider whether the direction of the will, that the executor should sell, constituted an equitable conversion.

The will directs that the executor shall sell, as soon as possible after the testator's death and within two years from the adınission of her will to probate, for the best price that can be realized, but for not less than $18,500 without the written consent of the testator's

It seems to us that this does not violate the statute against perpetuities. The trust is to continue until the time of sale. If the authority to sell was unqualifiedly limited by the provision that the executor should obtain the sum of $18,500 for the property, the trust would be illegal because it might be that the executor never could obtain that price. But under the will the executor can sell for any price if he obtains the consent of the testator's sons. There

sons.

App. Div.]

SECOND DEPARTMENT, MARCH TERM, 1899.

fore, under Robert v. Corning (89 N. Y. 225) there is no restriction of the power of alienation, for there are persons in being capable of conveying at any time an immediate and absolute fee in possession. Nor has the power of sale ceased by the failure to exercise it within the term of two years. It still continues. (Mott v. Ackerman, 92 N. Y. 539.)

The judgment appealed from should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.

William P. WALTON, as President of the Board of Officers of the

Eleventh Regiment of the National Guard of the State of New York, a Voluntary Association Composed of more than Seven Members, Respondent, v. CHARLES H. COLLINS, Appellant.

Substituted trustee what costs are allowable in an action to compel a transfer of the

trust fund.

In an action to compel a former trustee to transfer the trust fund to a substituted

trustee, only statutory costs should be allowed; and an allowance to the attorneys or counsel for the substituted trustee for legal services rendered for the benefit of the fund must be obtained in a proceeding directly instituted for that purpose, or by agreement with the substituted trustee.

Motion by the plaintiff, William P. Walton, as president of the board of officers of the Eleventh Regiment of the National Guard of the State of New York, a voluntary association composed of more than seven members, for a reargument of an appeal taken by the defendant from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of December, 1897, upon the decision of the court, rendered after a trial at the New York Special Term, and also from a final judgment in favor of the plaintiff entered in said clerk's office on the 9th day of April, 1898.

This appeal was transferred from the first department to the second department.

The opinion handed down on the argument is reported post,

page 624.

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