
    In the Matter of the Judicial Settlement of the Accounts of William Collins, as Executor, etc.
    
    
      Court of Appeals,
    
    
      Filed January 29, 1895.)
    
    1. Executors—Accounting.
    An executor, ordered to account as such for the proceeds of real estate sold under a power of sale given by the will, need not account also in the . character of a testamentary trustee, where the will creates no trust in the real estate, either directly or by implication.
    2. Same.
    ■The accounting should not include a sum which, by an arrangement among the devisees, was used to produce an annuity bequeathed to the widow, where such fund was all the time the property of such devisees and never belonged to, or formed any part of, the testator’s estate.
    Appeal from a portion of the order of the general term of the supreme coürt in the first judicial department, which reversed a decree of the surrogate’s court of the county of New York entered upon an accounting of the executor of the will of John G. Collins, deceased, and which remitting the proceedings to that court for a further accounting.
    John G. Collins died in 1858. His estate consisted of personal property, a piece of real estate, No. 41 Wooster street, New York city, and another piece in Eighty-fourth street. His will was admitted to probate September 20, 1858. It provided that, during her widowhood, his wife should have the net income of his property in Wooster street for the support of herself and their children. He' also gave her certain personal property absolutely and the interest and income, use and benefit of all the the testator’s estate during her widowhood. In case, however, she re-married she was restricted to the use during her life of the house and lot in Eighty-fourth street, sometimes called the house in Yorkville, and an annuity of fifty dollars, the income of the estate, except the annuity and Eighty-fourth street house, to be divided between the testator’s children until his son George W., who was his youngest child, arrived at age. At that time, if the widow had re-married, all the estate, except the Eighty-fourth street house and the amount set apart to raise her annuity of fifty dollars, it was directed should be divided between the children. At the death of the widow the Eighty-fourth street house was directed to be sold by the executors, and the proceeds thereof, and of all the residue estate, divided between the testator’s “ descendants.”
    The testator left him surviving his widow and three children, William, John W. and George W. Collins, the two latter then being infants. In 1860 the widow re-married Daniel Saunders. In 1861 William Collins and John Findley, the only executors who qualified, rendered an account in this court. The usual proceedings were had and a decree was entered June 1, 1861, showing a balance in their hands of $523.36, which they were directed to distribute. The rents of the Wooster street property were received by William Collins, as executor, from the time of his mother’s remarriage in 1860 until the property was sold to him as hereinafter .stated. George W. Collins, the youngest son, became of age in August, 1866. In May, 1867, William Collins purchased from his two brothers their interest in the Wooster street property. In April, 1874, the Eighty-fourth street property was sold to Abbie M. W. Peffers. The conveyances were made, one by William Collins, as executor, the other by Mary Saunders, the widow, William and John W. Collins and their wives and George Collins.
    John W. Collins died January 7, 1877, leaving a widow, also one child named Emma L. Collins.
    Mrs. Saunders died in October, 1886.
    Emma L. Collins, the general guardian of Emma L. Collins, who is an fnfant, on January 13, 1890, filed her petition setting forth, among other things, that William Collins was the sole surviving executor of John G. Collins; that by reason of the death of John W. Collins, her father, said infant was entitled to a distributive share in the undistributed proceeds of the estate ; that various payment had been made to the general guardian on account of such distributive share, and that the petitioner believed that other funds had not been accounted for or distributed. The prayer was that the executor be required to account. On January 13, 1890, the said executor filed a petition that all parties in interest be cited to attend upon such accounting, and thereafter and on March 3, 1890, an account was filed.
    It appeared that when John W. and George W. sold their shares in the Wooster street property to William they made an agreement in writing that a fund of $1,000 should be set apart to raise the annuity of $50 for the widow, to which fund each should contribute one-third; this fund to be left in the bands of William; the shares of John W. and George W. to be contributed out of their shares of the purchase money due from William on the Wooster street property. It does not appear that Mrs. Saunders objected to this arrangement.
    It was claimed on behalf of Emma L. Collins that this fund, or at least so much of it as was contributed thereto by John W. and George W., together with any interest realized thereon in excess of $50, the amount of the annuity, should be accounted for as assets of the estate.
    
      The appeal to this court was from that portion of the order of the general term of the supreme court which directs that the proceeding be remitted to the surrogate for an accounting of the executor as such, instead of directing its remission for an accounting by him, as trustee, under the will of the said deceased;. “ and in so far as he fails to make provision for an accounting by said William Collins as such trustee.”
    
      Jacob S. Van Wyck, for app’lt; Robert Hunter McGrath, Jr., for resp’ts.
    
      
       Affirming 54 St. Rep. 23.
    
   Finch, J.

The appellant’s argument covers an area very much beyond the scope of the real questions involved in this appeal. Those are only whether the executor ordered to account .as such for the proceeds of real estate sold under a power of sale given by the will, should account also' in the character of a testamentary trustee, and whether the accounting should include a sum .of $1,000 which, by arrangement among three of the devisees, was used to produce an annuity of $50 bequeathed to the widow. There is hardly room for argument over either question. The will creates no trust in the real estate, either directly or by implication. Purely legal estates were devised, and those vesting at once in the devisees upon the death of the testator, and involving no duty beyond that which an executor is competent to perform. What is-known as the Wooster street property, and the Yorkville house and lot, constituted the whole of testator’s real estate. His personal property was all exhausted and has been fully accounted for. The widow was given the income of all the real estate until her re-marriage, which occurred within two years after testator's death and upon such second marriage she was to have only an annuity of $50, and a life estate in the Yorkville property. All the residue was to be divided among the three children. Thereby the fee of the real estate was vested in them, incumbered only by the widow's life estate and the charge of the annuity. In this disposition there-is no trace of trust or trustee; nor the least need of either; and only the ordinary case of a devise of purely legal estates. The executor as such joined with the widow and devisees in a sale of the Yorkville property and has been ordered to account for the proceeds. Whether the power of sale was applicable to the situation, or the title transferred vested wholly upon the deed of the devisees, is a question not before us. The executor took the proceeds in his representative character and has been ordered to account for them, which was entirely proper. Hood v. Hood, 85 N. Y. 570. What more could be asked or required it is difficult to see. The defendant sold the land and received the proceeds, either as agent for. the owners or as executor under a power of sale, but never as a testamentary trustee dealing with a trust estate Vested in him by the will. To insist upon treating his act as done in the'latter character is not only without adequate reason but would confuse and complicate a very plain situation, and peril the admitted rights of the parties interested.

The annuity of $50 to the widow was probably a charge upon the Wooster street property which, after the widow’s marriage, belonged entirely to the three children. The personal estate was exhausted, the income of the Yorkville property belonged to the widow, and so the annuity became a charge upon the only remaining real estate in, the hands of the children. They so regarded it. The will had directed them to make necessary provisions for its payment. The direction created no trust, set apart no trust fund, but left the executors free to provide for it out of the estate. The three devisees of 'the Wooster street property, to exonerate their land from the charge, contributed each one-third of $1,000, and that sum was placed in the hands of William to obtain by investment the needed annuity.' That fund was all the time the property of the three children and never belonged to or formed any part of the testator’s estate. It was held and managed by William as agent of the devisees, and its annual income alone was payable by him as such agent in discharge of the annuity. When, by the death of the widow, the annuity ended, the purpose of the fund was accomplished, and it reverted to the sons freed from the charge upon it. If William holds it still it is not in the character of executor or as part of testator’s estate.

There was no error of which the appellant can complain and the judgment should be affirmed, with costs.

All concur.

Judgment affirmed.  