#### In the Matter of the Probate of the Last Will and Testament of Emmeline M. England, Deceased.

(Surrogate’s Court, Kings County,

November, 1910.)

Trusts: Purposes for which express trusts are valid — Passive trusts: Execution of trusts as powers — Trusts to he executed as powers.

A devise to an executor in trust, which does not authorize him to collect the rents and profits but gives to the life beneficiary the same right to occupy the lands devised that he would enjoy if he possessed the legal estate, is a dry and passive trust and not one of the permissible trusts under the laws of this State, but the title to the lands devised vests in the beneficiaries.

A provision that in certain events the executor shall rent a part of the premises and apply the rents as directed does not divest the title of the life tenants, nor create a trust, but is valid as a power in trust.

Such power is not invalid because in ease of sale the share of each legatee is to be paid when lie arrives at the age of twenty-three years, but upon conversion of the real estate each legatee will take a present right to his legacy with postponement of it's payment.

*524Nor is the power impaired because in case of the death of a legatee his share is to be paid to his survivors, but in case of such death the legacy will become immediately payable and no suspension is possible beyond the life of the life tenant and that of the deceased legatee.

Proceedings upon the probate of a will.

Robert E. Doherty, for the executor and trustee.

Roy, Watson & Maumer, for Franklyn R. England.

Katherine P. Daniel, special guardian.

Ketcham, S.

The finding in this case will he that the trust attempted in the sixth paragraph of the will was a dry and passive trust; that the legal estate in the lands sought to he affected thereby was devised to Franldyn R. England, his wife and his children in equal shares during the life of Eranklyn R. England, and that the trust, so far as it directed or authorized the performance of any act by the executors either during or after the life of Eranklyn R. England, is valid only as a power in trust.

The will is so exceptional that an analysis of its words would afford little of general value. The trust during the life of Eranklyn is not one of the permissible trusts, since the executor was not thereby authorized to receive the rents and profits. Real Prop. Law, §§ 96, 97. Hence, during the life of Eranklyn, the lands must descend, unless there is found in him, either alone or with his wife and children, such right of possession, as under the statute will vest a legal estate. Real Prop. Law, § 93.

The right *“*to occupy,” which the will gives, is a right to the possession and to the rents and profits. This right is fettered by certain requirements which, whether they are called conditions or not, impose upon the occupants no duty or burden which they would not be charged with as life tenants, in the absence of the restrictions. If, then, the possession bestowed is, in terms, no less actual and untrammeled than it would he if no restrictions were indicated, it *525is the same sort of actual possession, the same right to the rents and profits, as those which under the statute create a legal estate.

The provision, that in certain events the executors shall rent a part of the premises and apply the rents to the payment of charges upon the house and render the surplus to one of the' life tenants, cannot create a trust, for it does not contemplate that the proposed trustees upon intervening shall divest the title of the life tenants, already vested.

In no event are the executors to take away the title to the whole premises, and a trust as to a single floor or other undivided portion of a house is inconceivable.

This forces the inquiry as to whether the duties intended to be performed by the executors can be lawfully discharged under a power. A power to lease lands for the purpose of paying charges thereon is within the definition of the statute. Peal Prop. Law, § 131. It is a general power in trust where persons other than the grantee of the power are designated as entitled to the proceeds or other benefits to result from its execution. Peal Prop. Law, § 137.

The persons under this will who were designated therein as entitled to the benefits to result from the leasing of a portion of the premises are the life tenants, as well as the remaindermen, whose estate is to be saved from forfeiture and whose improvements are to be preserved from dilapidation. The executors, therefore, have a power, imposed upon the life estate, to lease the premises and to apply the rents in accordance with the will.

The effort to create a trust in remainder to sell the lands for the benefit of the legatees named should fail, unless it can be seen that the executors are empowered to receive the rents and profits. Peal Prop. Law, § 97. Ho such power is expressly given and the will does not yield any implication of its existence. The right or duty to receive the rents and profits cannot be derived from the mere words of devise, for the statute declares that no estate shall vest in the trustee, even when there is a *“*devise ” to him, unless he is “ also empowered to receive the rents and profits.”

In its absence, the executors took a power of sale, and the *526lands descended subject to the execution of the power. This power is not invalid because, in case of sale, the share of each legatee is to be paid when he arrives at the age of twenty-three years. Upon conversion of the real estate each legatee will take a present right to his legacy, with postponement of its payment.

Mor is the power impaired because, in case of the death of a legatee, his share shall be paid to his survivors. In case of such death the legacy will become immediately payable by the terms of the will, and no suspension is possible beyond the life of Eranklyn and the life of the deceased legatee.

The decree of probate will contain a construction of the will accordingly.

Decreed accordingly.