Graham v. Ackerly

120 A.D. 430, 105 N.Y.S. 51, 1907 N.Y. App. Div. LEXIS 1205

Opinion

Woodward, J.:

There, is no primary trust herein as in Hascall v. King (162 N. Y. 134).

The accumulations go on from the very start, for the trustees are directed, after paying debts and funeral expenses, “ to pay the interest and Five hundred dollars a year principal ór as much more as • my said trustees see fit on the bond and mortgage. on my property till 'it is paid in full; to pay to my sister Martha Noyler of Rahway, 'New Jersey, the sum of One Thousand Dollars as soon as'the rents and income will permit, and then to pay yearly to my son,” etc. It will be seen that every other provision of .the. will.is secondary to the clause creating the accumulations which are' prohibited by statute,

* and, therefore, the- principle of Hascall v. King (supra) must apply to that portion of the Will.

But the will vests the title to the real estate in the'defendants, and, furthermore, it directs them to sell the same in their discretion eight years after testator’s death, which occurred July 9,- 1894. The contract of sale is dated August 3, 1906, and the limitation of time of sale, therefore, had expired.

After such.sale defendants are ordered to pay certain legacies in full .or proportionately. . .

The question of the validity of .this will or its power is. not raised by any heir; it is - raised by the plaintiff, who is one of the parties • to said contract of sale.

■I am of-the opinion that, after applying the principle of Hascall v.King to this will, enough.vitality and power are left in it, and, through it, power to the defendants to make a valid contract of sale, and to give a marketable title' tó the plaintiff of the said.-premises, and, therefore, this action cannot be maintained.

IIiesohbeeg, P. J., Jenks, Hookeb and Gayuóe,. JJ., concurred.

■ Judgment for defendants .on submission of controversy,.-without costs.

See 1 R. S. 726, §§ 37, 38; revised in Real Prop. Law (Laws of 1896, chap. 647), §61.—[Rep. . '