
    Schuyler Hamilton, Plaintiff, v. William P. Hamilton, Defendant.
    (Supreme Court, New York Special Term,
    June, 1909.)
    Partition — Procedure for partition—Parties — Personal representatives or trustees, etc.
    Where a testator gave the residue of his estate to his children, subject to the life estate of his widow in one-half thereof, and authorized his executors during the minority of any child, to sell or mortgage the estate of such child or its interest or expectant estate, to sell the testator’s real estate upon the expiration of the “ trust term ” and to divide his estate among the persons who should then be entitled to it, and also “ during the said trust term * * * to invest and re-invest the trust fund,” the will confers upon the executors authority in respect to real property to accomplish one of the purposes mentioned in the 76th section of the Eeal Property Law.
    In such a case the executors are entitled to be substituted as plaintiffs in an action for the partition of real property commenced by the testator.
    Action for partition.
    Henry Stanton,, for plaintiff.
    Edward R. Vollmer, for defendant.
   Guy, J.

This action was brought by one Schuyler Hamilton for the partition of certain real property. After the defendants had been served and all had appeared or defaulted, the plaintiff died. The present motion seeks to substitute, as parties plaintiff, the executors of the deceased plaintiff; and the motion is opposed on the ground that the will of the decedent does not create a trust, and the executors cannot maintain the action, being neither joint tenants nor tenants in common. The fifth clause of the will provides as follows: I give, devise and bequeath all the rest, residue and remainder of my property, both real and personal, of whatsoever kind and wheresoever situated or being, of which i shall die seized or possessed, over or with respect to which I shall have any power of disposition or appointment at the time of my death to my daughter, Alexandra Schuyler Hamilton, and to such child or children as shall be born to me, either prior to or after my decease, by my wife, Emma Gray Hamilton, in equal portions, share and share alike, and if there be no such child or children, then to Alexandra Schuyler Hamilton absolutely, subject, however, as to an undivided one-half of said property, both real and personal, to the right of my wife, Emma Gray Hamilton, to have, hold, use and enjoy the same, and to receive and use the net rents, income and profit thereof during the term of her natural life, for which said term-1 hereby give, devise and bequeath the said undivided one-half of said property, both real and personal, to her as life tenant thereof. I authorize and empower my executors, hereinafter named, or such of them as shall qualify, or the survivor of them or their successors, during the minority of any infant to whom real estate or any interest therein, including an expectant estate, shall be given pursuant to the terms of this will, to sell or mortgage his or her said real estate or interest or expectant estate therein. I authorize and empower my said executors and trustees, or such of them as shall qualify, in their discretion, to sell my real estate of which I may die seized, and I also authorize them, upon the expiration of the said trust term, to partition and divide my estate among the persons who shall then be entitled thereto. And I further authorize and empower my said executors and trustees, during the said trust term, in their discretion, to invest and reinvest the trust fund,” etc. The rule laid down in Morse v. Morse, 85 N. Y. 60, that “the test is whether the instrument confers upon the trustee an authority in respect to the land, and the power is conferred to accomplish one of the purposes mentioned in the fifty-fifth section of the statute,” seems to be decisive of this motion. While the will is somewhat indefinite in its terms, I think it may be fairly gathered from the wording of the instrument that the decedent intended to and did create a trust.

The motion, therefore, is granted.  