
    Matter of the Judicial Settlement of the Account of Joseph Fritsch, One of the Executors of the Last Will and Testament of Emma Fritsch, Deceased.
    (Surrogate’s Court, Kings County,
    April, 1913.)
    Wills—Bequest of Certain Weekly Sum to Husband fob Life— Power of Sale—Executors and Administrators—What Interest Passes by Will.
    Where testatrix bequeathed a certain weekly sum to her husband for life, and the clause by which all the rest, residue and remainder of the estate, both real and personal, was given to her four children share and share alike, provided: “ Should either of the said children die then his or her share to go to the survivor or survivors, but said children shall only have the interest of their share or shares until they are twenty-one years of age, and they then shall receive the share or shares due them,” and the executors were given a discretionary power to sell any of the real estate, but such sale, if possible, not to be made until the youngest child became twenty-one years of age, there is nothing in the will from which a trust may be implied.
    The only duty of the executors with regard to the weekly payment to the husband of testatrix, which was but a legacy, was to arrange for its fulfillment so far as the personal estate might serve, or, under the power of sale, to apply thereto the proceeds of any property sold.
    Where one of the residuary devisees died after one piece of testator’s real estate had been sold, he died possessed of an interest in the proceeds of such sale as personalty, and such interest passed by his will.
    Proceeding upon the judicial settlement of the accounts of an executor.
    Nicholas Dietz, for accountant.
    Daniel L. Donovan (William S. Butler, of counsel), for William S. Butler, as executor of Katherine E. Fritsch, deceased, and for Dorothy C. Fritsch.
    George R. Holahan, Jr., special guardian for Karl Otto Fritsch and Joseph F. Fritsch.
    Arthur L. Hurley, special guardian for Emily Fritsch.
   Ketcham, S.

This account is made under a will which is in part as follows:

“First. After my lawful debts are paid I give devise and bequeath unto my beloved husband Joseph Fritsch the bakery and baking business at No. 548 4th Avenue, in the Borough of Brooklyn, N. Y. and I also give, devise and bequeath unto my said husband the weekly sum of Twelve Dollars as long as he lives and after his death it is to cease, such weekly sum to begin after my death.

Second. All the rest, residue and remainder of my estate, real and personal, wheresoever the same is or may be and whatsoever the same shall consist of unto my four children, namely Katherine E. Fritsch, Emily C. Fritsch, Karl Otto Fritsch and Joseph F. Fritsch, share and share alike. Should either of the said children die then his or her share to go to the survivor or survivors, but said children shall only have the interest of their share or shares until they are twenty-one years of age, and they then shall receive the share or shares due them.

Third. I give my executors hereinafter named or those qualifying full power and authority at their discretion and when to the best advantage of my estate to sell and dispose of my real estate and give good and sufficient deed or deeds therefor, but if possible not to sell the same or any of my real estate Until my youngest child is 21 years of age.

“ I hereby appoint my husband Joseph Fritsch and my friend John C. Kinkel, to be Executors of this my Last Will and Testament.”

There is nothing in this will from which a trust can be implied. There is no direction that the executors shall have anything to do with the real estate except to sell the same; nor is there any direction that they shall do anything with the personal assets beyond the ordinary conduct of the administration.

In all the cases where a trust has been implied there were duties imposed upon persons named, the performance of which rendered “ the possession by them of the estate convenient and reasonably necessary.” Cochrane v. Schell, 140 N. Y. 516; Ward v. Ward, 105 id. 68; Morse v. Morse, 85 id. 53; Tobias v. Ketchum, 32 id. 319; Jewett v. Schmidt, 83 App. Div. 276; Raymond v. Rochester Trust & Safe Deposit Co., 75 Hun, 239; United States Trust Co. v. Maresi, 33 Misc. Rep. 539; Tallman v. Tallman, 3 id. 465.

The rule derived from all of these cases, in its simplest statement, is that when the “ duties imposed are active and render the possession of the estate convenient and reasonably necessary, the executors will be deemed trustees for the performance of their duties to the same extent as though declared to be so by the most explicit language.” For this declaration see Ward v. Ward, supra.

The provision for the weekly payment to the husband is but a legacy or series of legacies in no respect differing from the ordinary gift of money, except with regard to the time of payment. As to this provision, the only duty of the executor is to arrange for its fulfilment so far as the personal estate shall serve or, under the power of sale, to apply thereto the proceeds of any property sold.

One of the residuary legatees has died since the testator, leaving a will made by him when he was between the ages of eighteen and twenty-one years. It is claimed in his behalf that an equitable conversion of the land resulted from the power of sale and that the will of the deceased devisee, since it was valid as to personalty, carries his interest in the lands which were subject to the power.

One piece only of the real estate of which the testatrix died seized has been sold, and this was sold before the death of the legatee last referred to.

There is in this will no imperative power of sale and, therefore, no equitable conversion of the lands. There was an actual conversion into personalty of the land which was sold. The deceased residuary devisee, therefore, died possessed of an interest in the proceeds of this sale as personalty and such interest passes by his will.

It cannot be said that upon his death his share went to his “ survivors,” since the provision in the will with respect to the children named as residuary legatees must, in the absence of qualification, be referred to a death contemplated as taking place in the lifetime of the testatrix.

The account should be reformed so as to exclude therefrom all items with respect to any real estate except the house which was sold.

Decreed accordingly.  