Greene v. Fitzgerald

Headnote

Greene v. Fitzgerald, 178 App. Div. 941 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered June 26, 1917, unanimously affirming a judgment in favor of defendants entered upon a decision of the court, at a Trial Term without a jury in an action for a construction of the will of Angelica Van Vranken, deceased. Plaintiff asked for a determination as to whether the third clause thereof was invalid as suspending the power of alienation for more than two fives in being and whether the will is valid and passes title to the real estate therein mentioned and whether he as surviving executor has the power of a trustee under the will to receive the income and profits and as to whether the testatrix was intestate as to her real property. The trial court found that the executors named in the last will and testament of Angelica Van Vranken, deceased, are not invested with any trust under the will in reference to the real estate disposed of by the will; that the plaintiff cannot, either as executor or individually, maintain this action, and that there was no unlawful suspension of the power of alienation. The provision of the will in question reads as follows: “ Third. I give, devise and bequeath unto my daughters, Ella Green, Isabella Duell and Annie Olmstead, after the death of my said husband the use, income and profits of all the rest, residue and remainder of my estate, both real and personal, for and during the period of their natural fives, share and share alike, and at their death their share shall descend to their ■ children. And if the income of the property so devised to my three last mentioned daughters should be more than three times the value of the income of the property devised to my daughter Grace and her children, then

my daughter Grace shall receive a sufficient amount of the same to make her income equal to one-fourth of my whole estate. And in case any of my daughters shall die without children then the share of the daughters so dying, shall go to the children of my other daughters.”