In re the Will of Berliner

267 A.D. 999, 48 N.Y.S.2d 290

Opinion

On appeal by the petitioners from a decree of the Bangs County Surrogate’s Court, in a proceeding for the construction of a will and for the approval of a compromise agreement, decree modified on the law by striking therefrom the first and second decretal paragraphs and all of the third decretal paragraph except insofar as it disapproves the compromise agreement, dated February 27, 1943; and as so modified, the decree is unanimously affirmed, without costs. 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. (Kernoehan v. Marshall, 165 N. Y. 472; Radley et al. v. Kuhn et al., 97 1ST. Y. 26; Shannon v. Rents, 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 He Rycke, 99 App. Div. 596.) Present — ■ Close, P. J., Hagarty, Johnston and Aldrich, JJ.; Carswell, J., not voting. [See post, p. 1000.]