#### SPITZER v. SPITZER et al.

(Supreme Court, Appellate Division, Second Department.

March 7, 1899.)

1. Wills—Express Trust.

Where an estate is devised to an executor, and he is directed to collect the rents, and divide them among the beneficiaries, until he shall sell the property, an express trust, and not merely a power in trust, is created.

2. Same—Perpetuities.

A will providing that the executor shall not sell for less than a named price, without the consent of the testator’s sons, does not violate the statute against perpetuities, since there is no restriction of the power of alienation; for there are persons in being capable of conveying at any time an immediate and absolute fee in possession.

3. Same—Power op Sale—Failure to Exercise.

Under a will directing that the executor shall sell within two years from its admission to probate, failure to sell within that time does not terminate the power of sale.

Appeal from special term, Hew York county.

Action by Robert Spitzer against Albert Spitzer, impleaded with others. From an interlocutory judgment in favor of the defendant Albert' Spitzer, plaintiff appeals. Transferred from First to Second department.

Affirmed.

Argued before GOODRICH, P. J., and CULLEH, BARTLETT, HATCH, and WOODWARD, JJ.

Henry Cooper, for appellant.

Jacob Marks, for respondent.

CULLEH, J.

The plaintiff demurred to the answer. The defendant retorted by asserting that the complaint did not state a good cause of action. This contention the court below upheld, and rendered judgment in favor of the defendant. The action is for partition, and the only question is whether, under the fourth clause in the will of the ancestor of the plaintiff, the defendant, as executor, took title to the real estate mentioned in that clause. We think he did. There is a devise in express terms to the executor, and he is directed to collect the rents, and divide them among the beneficiaries, until such time as he shall have sold the property. This is an express trust, not merely a power in trust. It is therefore unnecessary to consider whether the direction of the will that the executor should sell constituted an equitable conversion.

The will directs that the executor shall sell as soon as possible after the testator’s death, and within two years from the admission of her will to probate, for the best price that can be realized, but for not less than $18,500, without the written consent of the testator’s sons. It seems to us that this does not violate the statute against perpetuities. The trust is to continue until the time of sale. If the authority to sell was unqualifiedly limited by the provision that the executor should obtain the sum of $18,500 for the property, the trust would be illegal, because it might be that the executor never could obtain that price. But under the will the executor can sell for any price, if he obtains the consent of the testator’s sons. Therefore, under Robert v. Corning, 89 N. Y. 225, there is no restriction of the power of aliena*471tion; for there are persons in being capable of conveying at any time an immediate and absolute fee in possession. Ñor has the power of sale ceased by the failure to exercise it within the term of two years. It still continues. Mott v. Ackerman, 92 N. Y. 539.

The judgment appealed from should be affirmed, with costs. All concur.