
    Albert J. Appell, Appellant, v. Anna T. Appell et al., Respondents, and Emelia A. Sauer, Appellant, Impleaded with Others.
    (Argued June 6, 1917;
    decided July 11, 1917.)
    
      Appell v. Appell, 177 App. Div. 570, affirmed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 5, 1917, which affirmed an order of Special Term granting a motion by defendants, respondents, for judgment in their favor upon the pleadings in an action for partition of real property devised under the will of Jacob Appell, deceased. The testator gave all of his property to his executor and executrix in trust to collect and receive the rents, issues and profits of the real estate and the income of the personal property, and out of the net revenue to pay annuities to his widow and each of his children. Next they were to create out of said net income a so-called sinking fund with which to pay off and discharge the mortgages and other incumbrances of or upon bis real estate or to be used in the improvement of said property. After all the mortgages and incumbrances had been thus paid off the trustees were directed to divide the whole of the net income between testator’s widow and children. Plaintiff contended that the will was invalid and that the testator died intestate as to his real property.
    The following question was certified: “Does the complaint state facts sufficient to constitute a cause of action ? ”
    
      Carlisle Norwood, Charles A. Flammer and Albert J. Appell for appellants.
    
      Gustav Lange, Jr., for respondents.
   Order affirmed, with costs, and question certified answered in the negative; no opinion.

Concur: Chase, Collin, Cardozo, Pound, McLaughlin, Crane and Andrews, JJ.  