opinion of the surrogate, 202 App. Div. 810, 194 N. Y. S. 913. In all of these cases it will be found that the reason why the court held that the cestui might use the principal of the trust fund, without resort to his own property or the income therefrom, was because of the peculiar language of the will creating the trust. None of them are similar or applicable to the case at bar.

[5] In the case at bar the trustees will consider the value of the individual property of the cestuis and the probable net income therefrom in exercising their discretion as to whether any of the principal of the trust funds should be paid to the cestuis for their care, support or maintenance, or for the education of their children. It would be idle for the court to undertake at this time to define the circumstances or conditions hereafter affecting the cestuis which would justify the trustees in their discretion in allowing the cestuis to use part or all of the principal of the trust funds. All that can be done is to set forth the established principles of law which should govern them in the matter. The discretion of whether the facts and circumstances in each particular case as presented by the cestuis justify the use by the cestuis of any of the principal of the trust funds is left to the good judgment of the trustees, and is only reviewable by this court in case there is an abuse of such discretion. Where discretion is given to trustees in such a matter, the court will not interfere with the reasonable exercise thereof. Matter of Hilton, 174 App. Div. 193, 160 N. Y. S. 55; Ireland v. Ireland, 84 N. Y. 321, 326; Holden v. Strong, 116 N. Y. 471, 474, 22 N. E. 960.

[6] It seems to be well established that where the acts of trustees call for exercise of discretion and judgment, the concurrence of all is necessary. Cooper v. Illinois Central R. R. Co., 38 App. Div. 22, 28, 57 N. Y. S. 925; Fritz v. City Trust Co., 72 App. Div. 532, 533, 76 N. Y. S. 625, affirmed without opinion 173 N. Y. 622, 66 N. E. 1109; Matter of Ehret (In re George Ringler & Co.) 70 Misc. Rep. 576, 579, 127 N. Y. S. 934; Matter of Dorland, 100 Misc. Rep. 236, 241, 242, 166 N. Y. S. 616. The rule is otherwise when ministerial duties only are to be performed. Matter of Dorland, supra, and cases therein cited.

As to the construction of the will in question, let the decree provide that the true construction is that the trustees of each of the three trust funds shall pay annually to the cestuis the income from their respective funds; that in addition thereto, the trustees shall pay to said cestuis such sums from the principal of the respective trust funds of the cestuis as may be necessary in the discretion of said trustees for the proper care, support, or maintenance of said cestuis, or for the education of their children, the value of the individual property of the cestuis and the probable income there from to be considered by the trustees in the manner heretofore stated, in exercising their discretion as to the "need" for the use of such principal for the purposes herein mentioned; that in exercising their discretion in such matter the trustees must act unanimously.

(207 N.Y.S.)

Said decree shall further provide, pursuant to the authority vested in this court by section 253 of the Surrogate's Court Act (Laws 1920, c. 628), that the trustees of the respective trust funds shall file annually with this court reports of the custody, investment, and disposition of the said trust funds, in substantially the same form as is by law required of general guardians of infants.

Decreed accordingly."

(124 Misc. Rep. 117)

In re KUHRASCH'S WILL.

(Surrogate's Court, Westchester County. December 9, 1924.)

1. Perpetuities 6(5)—Provision directing maintenance of testator's realty for nine years and payment of rents to beneficiaries held invalid, and in conflict with provision for sale.

Paragraph of will directing executor to maintain testator's realty for nine years and to pay rent to designated beneficiaries was in conflict with paragraph giving executor power of sale, and therefore power did not come into being until nine years were up, and there was unlawful suspension of power of alienation, under Real Property Law, § 42.

2. Perpetuities 6(5)—Provision directing executor to maintain testator's realty for nine years and divide rent invalid, even if power of sale operative.

Paragraph of will directing executor to maintain testator's realty for nine years and to divide net rent between designated beneficiaries is invalid, under Real Property Law, § 42, even if power of sale given in another paragraph is operative during nine-year period.

3. Executors and administrators 138(1)-Provision giving executor power of sale and directing distribution of proceeds held mandatory.

Provision of will giving executor full power to sell any or all of testator's realty and directing distribution of proceeds, though preceded by unlawful suspension of power of alienation, held mandatory and effectual, and gifts of proceeds valid.

In the matter of an application for a judicial construction of the will of Charles Kuhrasch, deceased. Will construed.

Adrian M. Potter, of Yonkers, for proponent.

Charles Edward Long, of White Plains, for certain legatees.

Morris L. Rosenwasser, of Yonkers, for other legatees.

SLATER, S. The decedent died on the 3d day of March, 1924, and his will was probated on the 14th day of June, 1924. This is a construction proceeding. The will is as follows:

"I, Charles Kuhrasch, of the city of Yonkers, county of Westchester and state of New York, do make, publish and declare this to be my last will and testament, and do hereby revoke all former wills by me at any time heretofore made.

"First. I direct that all my just debts and funeral expenses be paid by my executor hereinafter named, as soon after my death as may be practicable. Funeral expenses not to exceed the sum of eighteen hundred dollars.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

"Second. I direct my executor hereinafter named to maintain my real estate for a period of nine years in a good state of repair, and after deducting all taxes, repairs, funeral expenses and all other necessary expenses to divide the balance of the rent, equally between Joseph Ressler and Bertha Ressler his wife.

"Third. I hereby appoint Joseph Ressler of Yonkers, New York, to be the executor of this my will with full power to rent, lease or sell any and all of my real estate. From the sale of my real estate I direct the proceeds to be distributed as follows:

"Fourth. All the rest, residue and remainder of my estate to be divided equally between Joseph Ressler and Bertha Ressler, his wife."

[1, 2] The petitioners are some of the legatees. They contend that paragraph second of the will relating to the direction to maintain the real estate for nine years is void. The executors contend that, because there is a power of sale, the paragraph is effective and valid. It would appear that paragraph second and paragraph third are in conflict. The beneficiaries of the second paragraph cannot receive the rental of the real estate for nine years, and the power of sale be effectual and exercised. In my judgment, the power of sale does not come into being until the nine-year period has elapsed. A sale would be in contravention of the gift of the rentals. Consequently paragraph second violates section 42 of the Real Property Law and falls within the ruling in Matter of Wilber's Will, 122 Misc. Rep. 472, 202 N. Y. S. 760, and Matter of Berry's Will, 154 App. Div. 509, 139 N. Y. S. 106, affirmed 209 N. Y. 540, 102 N. E. 1099. The power of alienation is suspended by a term not measured by lives, but is measured by years, which may be longer than two lives. Such a provision is illegal. However, should the power of sale be operative at the present time, it matters little, as paragraph second would still be condemned. The existence of the power, as contended by the executors, will not save it. Its invalidity would not be overcome by reason of the power of sale being operative. Matter of Hitchcock's Will, 176 App. Div. 326, 160 N. Y. S. 1029; Id., 222 N. Y. 57, 71, 118 N. E. 220; Matter of Fitzsimmons, 114 Misc. Rep. 71, 186 N. Y. S. 664.

[3] I conclude that paragraph second is void. The power in paragraph 3 is mandatory and effectual, and the gift to the legatees named in said paragraph is valid. Smith v. Chesebrough, 176 N. Y. 317, 68 N. E. 625; Matter of Berry, supra; Kalish v. Kalish, 166 N. Y. 368, 59 N. E. 917.

(123 Misc. Rep. 911)

(207 N.Y.S.)

In re MORGAN'S WILL.

(Surrogate's Court, Westchester County. November 19, 1924.)

Trusts 217(4)-Direction that executor and trustee authorized to change investments should hold stock in designated corporation, construed.

Where will gave one trust company $50,000 in trust for testator's wife and children, and gave residue in trust for children to another trust company named as executor, and after payment of debts estate consisted solely of stock in corporation, valued at $35,000, paragraph directing "executor and trustee" to retain stock in such corporation held not applicable to trustee of $50.000 fund, but to trust company named as executor and trustee of residuary estate.

In the matter of the application of the United States Mortgage & Trust Company, as trustee under the last will and testament of Albert J. Morgan, deceased, for a judicial construction of the will. Will construed.

Patterson, Eagle, Greenough & Day, of New York City, for trustee. Carter, Ledyard & Milburn, of New York City, for general and ancillary guardian.

Franklin Brooks, of New York City, special guardian.

SLATER, S. I do not think there would be much need of a construction of the will if the estate left by the decedent had been as large in amount as it was when the will was executed. Decedent died in March, 1921. The will is dated February 14, 1917. Decedent left a widow and two children. By the third paragraph of the will he gives to the United States Mortgage & Trust Company of the City of New York $50,000, "to invest the same and keep the same invested and such investments to change from time to time in its discretion, and to apply the net income to the use of the wife during her life until she shall remarry. Upon the death or remarriage of the wife, to divide the trust in two equal shares for the use of the two children with provision for payment of income and principal upon reaching certain ages. The event of the remarriage by the widow has happened.

* *

By the fourth paragraph of the will "all the rest, residue and remainder of the estate is given to the Metropolitan Trust Company of the City of New York, in trust, to divide in two equal shares for the two children, and to invest each of said portions in such securities as to it shall seem proper, and the same to change from time to time in its discretion, and to pay over the income and the prin

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cipal upon their arriving at certain ages.

The sixth paragraph appoints the said Metropolitan Trust Company as executor of the will. Thus the executor and the trustee of the residuary estate is the same trust company. The next three clauses in the sixth paragraph relate to certain powers of the executor. The For other cascs see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

fifth clause in said sixth paragraph empowers the executor to retain and continue "in its discretion for any time without limitation any and all investments whatsoever made by me, and I authorize and empower it at any time or times, to change the whole or any part of such investments and of any investments made by it. The seventh clause in the sixth paragraph creates the reason for the construction of this will. It is as follows:

* * * ""

"I expressly direct that my executor and trustee shall continue to hold all shares of stock now held by me in the corporation Enoch Morgan Sons Company, so long as my mother or my sister or both or either of them shall continue to be a holder of stock in said corporation.

*

After the payment of debts and charges, the estate consisted of about $35,000, all in the stock of the Enoch Morgan Sons Company, which has been turned over by the executor to the United States Mortgage & Trust Company as trustee of the trust created under the third paragraph of the will. There is no residuary estate.

The trustee of this particular trust asks for the construction of that part of the sixth paragraph, which expressly directs the executor and trustee to hold the stock of the Enoch Morgan Sons Company. Does the express direction apply to the trustee of the $50,000 trust fund?

If there had been ample property, the executor would have paid over to the United States Mortgage & Trust Company the sum of $50,000 in money, or in approved securities for the purpose of setting up the trust, and this question would not have arisen.

It is my opinion that all the clauses of paragraph sixth refer and have reference only to the executor, as such and as trustee; that when the draftsman of the will used the words "executor and trustee," it was the intention of the testator to refer to the same corporation, being the Metropolitan Trust Company, as executor of the will and trustee of the residuary estate. The express direction as to holding the Enoch Morgan Sons Company stock does not refer to the trustee of, the $50,000 fund. The last clause in the sixth paragraph, stating that the executor and trustee should not be liable for the default of any agent selected or appointed with reasonable care, refers only to the Metropolitan Trust Company, the executor and the trustee of the trust of the residuary estate.