
    Adeline, S. Matthews, Appellant, v. Edwin B. Studley and Charles P. Sturtevant, as Executors, etc., of Albert P. Sturtevant, Deceased, and Others, Respondents; Ethel Shew, Appellant, and Eliza A. Sturtevant, Defendant.
    
      Conversion of real estate into personalty — one fund divided into four separate and independent trusts—the power of alienation not illegally suspended thereby, nor where the trust fund is. charged with annuities — such an annuity is an absolute legacy, to be paid out of the estate, not from its income—accounting by executors in the Supreme Court, improper.
    
    To establish an equitable conversion by a will of real estate into personalty, the will must require a sale of the real estate, and a distribution of the proceeds as personal property absolutely for all purposes, irrespective of contingencies and independent of any discretion as to whether there shall be a sale or not.
    The will of Albert P. Sturtevant, a resident of Connecticut, directed his executors and trustees thereinafter named to pay out of his estate annuities to several persons named, and by its 10t.h clause devised and bequeathed to the' executors' and trustees named therein, “always subject to the foregoing gifts,” the residue of his estate, both real and personal, in trust to invest the personal estate and divide its income between four persons, to let his real estate, and, after paying the expenses and charges upon the property, to pay over the net rents to the same persons, and at the death of each of these persons to pay over absolutely to a person named in the will that proportion of the corpus of the fund of which the deceased beneficiary received the income.
    In an action brought to obtain a construction of the will it was
    
      Held, that the trust created by the 10th clause of the will did not improperly suspend the power of alienation for more than two lives in being at the death of the testator, as it created four separate and independent trusts, each of which was determined by the death of the particular beneficiary thereof;
    That a claim that the trust was created for the payment of the annuities, and that consequently the power of alienation ivas necessarily suspended during the lives of all the annuitants, as well as during those of the other beneficiaries, and, therefore, longer than was permissible by statute, was not tenable,
    
      
      Mrst, because, unless absolutely necessary, a trust will never be implied where it will render a will illegal, nor will a tnist be extended to other provisions in a will where the effect would be to invalidate it;
    
      Second; because, as the annuities were given by the will before the trust estate was created, and as the residue was given to the executors and trustees in trust "always subject to the foregoing gifts,” it wás'to be inferred that the estate which the trustees took under the 10th clause was only that portion thereof which was left after provision had been made for the payment of the annuities; That the rule, that when an annuity is given to a legatee; and is charged by the testator upon his real and personal estate, it is not property-held in trust for the legatee, but is an absolute legacy, the payment of which, out of the estate upon which it is a charge, may be enforced by the legatee in equity, was applicable to the present case; ' .
    That it was the duty of the executors to provide for the payment of the annuities out of the estate, and not out of the income of the estate.
    The maintenance of a proceeding in the Supreme Court for an accounting by executors will not be permitted, unless special reasons be. shown why it was not instituted in the" Surrogate’s Court — certainly not when the proceeding in the Supreme Court is begun within a year after the letters testamentary were granted. . ■ '
    Appeal by the plaintiff, Adeline S. Matthews, and by the defendant Ethel Shew,, by her guardian ad litem, Schuyler 0. Carlton, from a judgment of the Supreme Court,- entered in the office of the’ clerk of the county of Hew York on the 18th day of December, 1896, upon the decision of the court rendered after a trial at the Hew York Special Term construing the will of Albert P. Stur-te-vant, deceased.' ' ■
    
      Benjamin ■Bates and Thomas M. Waller, for the plaintiff, appellant.
    
      Schuyler O. Garitón, guardian ad litem, for the appellant Ethel Shew. - •
    
      Bronson Winthrop and Elihu Boot, for the respondents, executors and others.
    
      Albert Sjprague Bard, guardian ad litem, for the defendant Eliza A. Sturtevant.
    
      Edwa/rd S. Qli/nch, for the respondent Emmeline E. Taylor.
   Rumsey, J.:

This is an action brought by one of the legatees under the will of Albert P. Sturtevant, against the executors and other persons interested in that will, to obtain a construction of it. The executors who were made parties defendant also demanded in their answer a construction of the will. As a result of the trial the court found substantially that the different provisions of the will were valid and construed it in accordance with the contention of the executors and judgment was entered accordingly. From that judgment the plaintiff and one of the defendants, in like case with her, appeal. We shall not find it necessary upon the consideration of the appeal to travel over all the ground which was occupied by the Special Term in considering this will. Some of the conclusions reached by the Special Term are not questioned, and as to some which are questioned, no exceptions were taken, so that the appellants are not in a situation to deny their correctness upon this appeal. We shall confine ourselves simply to the examination of the few questions which are necessarily before us upon the exceptions.

Albert P. Sturtevant, the testator, was a resident of the State of Connecticut. He was the owner of a large estate situated in that State, as well as of considerable real estate situated in the county of Hew York. He also was the owner of a large amount of personal property. He died on the 14th day of March, 1893. His will is dated on the 25th day of June, 1892, and was executed in the State of Connecticut. By this will he made some specific devises of his real estate to certain persons, but those devises are not necessary to be referred to any further in this opinion. Fie also bequeathed certain sums of personal property to legatees named in the will, and to his wife, but as no question arises upon any of those specific bequests of the personal property no further attention will be paid to them, except to say that the amount of personalty given by those bequests was something over $50,000, iu addition to the use of all the personal property in and about his residence, including furniture, plate, pictures, and his horses, carriages and harnesses, which were given to his wife for her life.

The questions presented here arise substantially upon the 10th and 11th clauses of this will, which will shortly be referred to more at length, and upon several other clauses bequeathing to certain persons annuities to be paid out of his estate. A large portion of the fortune of the testator consisted of an interest in a hotel in the city of .New York, known as the Sturtevant House. . This hotel was situated on. Broadway, and .belonged to the testator and his brother, Charles P. Sturtevant, as tenants in common. A portion of it was built upon property which they owned in fee, and the remainder upon ground leased by them. The testator owned, in. addition to this,, two other houses and lots in 'the city of New York, one upon East Twenty-seventh and one upon East Twenty-eighth street, In his will, as has been said, he gave directions for the payment of the following annuities: To his wife, Eliza Sturtevant, $5,000 for her life in. quarterly payments; . to the 'wife of his son, Charles P. Sturtevant, the sum of $600 in quarterly payments; to each of the children of Charles P, Sturte-. vant the sum of $250 annually; to Emmeline Taylor, $1,000 annually. These annuities were .all given by the same form, of words, which was as follows: “ I direct' my executors and trustees hereinafter named to pay out of my estate.” Then followed the particular. annuity which was directed to be paid. The testator also directed that all his just debts and funeral expenses should be paid out of his estate by his. executors. The-court at Special Term found, as a conclusion of law, that as the result of the direction just quoted for the payment of the debts, the real estate of the testator was subject to a valid' power of sale for that purpose.. This' finding of the court seems to be questioned by the apjsellants, who.argue that it is erroneous. No exception,, however, was taken by either of the appellants to this conclusion of law of the Special Term, and for that reason the correctness- of it is not before us for review. It may be said, however, that the ruling of the court in that regard is not material as we look at it, upon, any question which is decided on this appeal. As. it is not necessary for. us to' express any opinion upon the correctness of that conclusion we expressly refrain from doing so, and the fact that nothing further is said about it is not to be taken as an assent to its correctness if the point should subsequently be raised upon, a like state of facts. . •

By the 10th clause of his will, which followed the bequest of all the annuities in the will, the testator devised and bequeathed to- liis ■ executors and trustees, “ always subject to the foregoing gifts,” all the rest and residue of his estate, both real and personal, of every name and nature and wheresoever situated, in trust for the uses afterwards mentioned in that clausé, .These trusts were substantially to invest and keep invested his personal estate and to collect the income and interest thereof, and -after satisfying all expenses and charges, to divide it equally between certain persons who are named as beneficiaries. The second subdivision of that clause required that the executors and trustees should let his real estate and should collect and receive the rents and income from it, and after paying the expenses and charges upon the property, should pay over the remainder to the same persons named as beneficiariés of the personal estate in the same proportions. These persons were four in number. As to each one of them, respectively, the will directed that at his or her death the trustees should pay over to a certain person named in the will, absolutely, the same proportion of the principal of the trust which that person took in the income during his life, so that, as the result of the 10th clause, the trustees were directed to pay a certain proportion of the income and profits of the real and personal property to one of four persons' during his or her life, and at the death of each of those persons, to pay over the same proportion of the corpus of the estate absolutely to some one person designated to receive it. It is claimed by the appellants that this trust was void for the reason that the power of alienation of the trust estate was, by the terms of the will, suspended for more than two lives in being at the death of the testator. So far as the particular provisions of the clause of the will under consideration are concerned, there is clearly no foundation for this claim. The clause in question created four separate and independent trusts, one for each of the beneficiaries named in it. As to each of those trusts, by express provision of the will, it was determined at the death of the person named as its beneficiary, so that as a necessary result each trust ended at the death of the person named as the recipient of the income of his portion of the estate.' There were, therefore, four trusts, no one of which suspended the power of alienation for a greater period than a single life in being at the death of the testator. (Savage v. Burnham, 17 N. Y. 561; Locke v. Farmers' Loan & Trust Co., 140 id. 135.) Considered by itself, therefore, the trust created by this clause of the will is undoubtedly valid. Indeed, we do not see that any serious contention is made by the appellants upon this point, if it is held that there is no other trust created by the will than that contained in the 10th clausé. But the appellants insist that as a necessary construction of this will the annuities given. by the. previous clauses, and’ which are by the terms of the will to be paid by the executors and trustees out of the estate, are included in the trust and are to be paid out of the. income of the trust estate, and that .as. those, -annuities are given -to several people, -the power of alienation of the trust estate must necessarily be suspended during the life of all' the annuitants as well as-during the separate lives of: the beneficiaries named in the 10th clause, and that;, therefore, -the power of alienation is. necessarily suspended'for more than. two. lives in being. This contention was answered at the-Special .Term by a holding that the necessary result of certain clauses of the will was to create an equitable conversion of the.real estate.-into personalty, and that-, therefore, the 10th clause only operated Upon personal estate, and that as'the testator was a-resident. Of Connecticut, the transmission of the personalty was .controlled by the laws of that State, and' that, therefore, the. statutes of Hew York-did not apply. As to the personal estate of the testator and as. to .the real estate situated in the State of Connecticut, undoubtedly this is the true, rule. (Cross v. U. S. Trust Co., 131 N. Y. 330.) But as to the real, estate in the State' of Hew York, it is not the rulé, unless by a fair construction of.'the will .that has-been equitably converted into personal property. Upon that point we find rather a .peculiar condition of affairs." That, portion of the Sturtevant House .which stands upon leased ground was undoubtedly personal property and passed to the executors under the will (2 R. S. 82, § 6),- and the exception to'the 10th conclusion of law thus holding-is not well' taken. The learned justice below, found that the real estate known . as the Sturtevant House was, upon the death of the testator, equitably converted' into personal property. .As to that .finding, no exception was taken, and if it referred to all the real estate of the* testator situated in the State of Hew York,- the conclusion, of the .-Special Term as to the validity of. this trust-must" be affirmed, for the reason that the question is. not fairly be-foi'e us for review. ' But the Special Term also found that the. two houses and lots in East Twenty-seventh and East Twenty-eighth streets were, upon the-death of the testator, equitably converted into, personal property,- and that them transmission was governed by the laws of Connecticut, like other personal property. That finding was excepted .to, and, therefore, the question is fairly raised as to that property at least, whether, by the terms of the will, it can be said that there was an imperative direction to the executors and trustees to sell the' real estate which is necessarily connected with the scheme of the will. If that be so, undoubtedly there was an equitable conversion, but, unless that be the case, there was not such a conversion. To establish an equitable conversion of real estate into personalty by the will, it must require a sale of the real estate and distribution of the proceeds as personal property absolutely for all purposes, irrespective of contingencies and independent of any discretion as to whether there shall be a sale or not. (1 Jarman on Wills [5th ed.], *584; Trowbridge v. Metcalf, 5 App. Div. 318.) A mere discretionary power of sale produces no such result. (White v. Howard, 46 N. Y. 144, 162, and cases cited.) ■ The power of sale was given by the 11th clause of the will. It expressly authorizes the executors to sell the real and personal estate at public or private sale at such times and on such terms as they shall, in their discretion, deem proper and advisable. After that follows an expression of the wish of the testator that the Sturtevant House shall be kept as an investment as long as possible, but that this request shall not restrict the sale of it by the executors and trustees whenever they think it advisable. In view of this provision in the 11th clause in regard to the Sturtevant House, it is quite peculiar that no exception was taken to the 13th conclusion of law in the decision that that property was equitably converted into personal property. It is quite clear that this provision of the 11th clause of the will does not contain any imperative direction to the trustees to sell the real estate. It leaves not only the time and manner of sale, but the sale itself, entirely in their discretion. We are not able to tind, upon an examination of the will, anything which enables us to say that a sale was necessary to the scheme of the testator. Indeed, the contrary seems clearly to appear. The 10th clause of the will contains separate directions as to the disposal of the income of the real and personal estate, and the 2d subdivision of that clause contains such directions as to the letting of the real estate as necessarily imply that it was not the idea of the testator that that should be sold. Indeed, taking that part of the 10th clause in connection with the request of the testator in the 11th clause, that the Sturtevant House should not be sold unless it were necessary, there must be implied an intimation that the testator did. not intend that there should', be a sale'of'the real estate unless the trustees concluded that it was absolutely required. For these reasons we do not agree with the learned justice at Special Term, that there was an equitable conversion of the real estate, and, therefore, this trust cannot be pronounced valid for the. reason that it is practically a trust of'the personal' property.and is not governed by the.law of the State of Flew York.

But, -nevertheless, we think that the claim of .the plaintiff, that the trust was ■ created for the payment of 'the annuities, is not well founded; The express terms of the trust require the payment of the income of the trust property, after expenses' and charges 'upon it shall have been satisfied* to the beneficiaries named therein. ■ ' The trust does not in terms apply to the annuities,, and they cannot be brought Avithin the trust unless it can be said that they aré payable . out of the income of the estate, as expenses and charges thereon. . Tins construction Avill not be given to the bequest unless it is necessary, because a trust will never be implied where it will render the. Avill illegal (Greene v. Greene, 125 N. Y. 506), nor will the trust be extended to other provisions in the Avill, the effect of which would' be to invalidate'if, unless that, construction. is necessarily required by the terms of the will. The. several' bequests of the annuities are made before .the trust estate is created, and the rest and residue is given to the ¿xecutors .and trustees in the clause .creating the trust estate, subject expressly to the ’ foregoing gifts; that ' is, subject to the bequests of the annuities. By fair inference then, the estate which the trustees took under the 10th' clause is that portion of the estate which .is left after providing for the annuities.. To be sure the annuities are tó be paid by the executors and trustees, but .that direction in the bequest of annuities is to be taken in connection, with the further direction that the annuities are to be paid by the executors and trustees out of the estate, and that.-the trustees take, subject to that direction for payment. ' While the a estate is given to them as trustees, and the payment of the annuities is to be made by them out of the estate, it clearly is not to be made as a duty-arising from the' trust, nor out of the income, but the estate given to them is charged with the annuities, because they take the legal title to-it, precisely as' it would haye been charged had it been given to any other person absolutely, for his own benefit, subject to the same annuities. In such a case as that no one would claim that a trust had been created to pay the annuity.

It has been held that where the annuity is given to a legatee and charged by the testator in his will upon the real and personal estate,, it is not a property held in trust for the legatee, but an absolute'legacy, the payment of which, out of the estate upon which it is a charge, may be enforced in equity by the legatee. (Degraw v. Clason, 11 Paige, 136.) That rule clearly applies here. For the purposes of the construction of this will the executors must be regarded as talcing the legal title subject to the gift of the annuities, and it is their duty to provide for the payment of the annuities out of the estate and not out, of the income of the estate, for by express terms they are given out of the estate. It is quite true that by the Revised Statutes • an express trust may be created to sell, mortgage or lease real property for the benefit of annuitants, or to satisfy a charge upon that property, but it will -not be assumed that an estate is given in trust for that purpose unless it appears by necessary inference that the payment of the annuity7 is one of the purposes of the trust. We have shown, we think, that such is not one of the purposes for which this trust is created. The payment of the annuities cannot be imported into the body of the trust. These annuities stand as a charge upon the legal estate held by the trustees, to be provided for out of the corpus of the estate and before any income can be created to be devoted to the purposes of the trust. Giving that construction to the will, the necessary result follows that the trusts in the 10th clause must be construed without regard to the annuities, and that thus construed it is clearly valid.

These considerations dispose of the questions raised by the appellants upon the construction of the will. The only objection which remains to be considered is that one which refuses to the plaintiff an accounting. In that,- we think, the learned justice was clearly correct. The will was proved in the State of the Hew York on the 2d day of May, 1895, and letters testamentary were then issued to the executors in this State. By express provision of the statute a judicial settlement of the estate could not be compelled in the Surrogate’s Court until one year had expired since the will was admitted to probate. (Code Civ. Proc. § 2807.) This action was begun in December, 1895, about six months after the' letters testa- , mentary. were issued to the ’executors in this State. ’ Mb proceeding for.an accounting could .have been taken in the Surrogate’s Court ' until May, 1896.. . While we are not prepared to say that if it were necessary^ one interested in an'estate could not take proceedings .in ■ the Supreme Court .to compel an. accpunting by executors .sooner than twelve months after they were appointed, yet such an action would not be permitted unless special reasons were shown for it. Indeed, no , proceeding for an'accounting of executors, "in the Supreme Court, will ever be permitted unless special reasons are ’ shown why such an accounting cannot, or ought not, to be taken in . the Surrogate’s’ Court.- That-court is the proper tribunal for such proceedings, and it is not necessary or proper to remove them into another court in the absence of special reasons which require that course to be taken. . '

Upon the whole case we are satisfied with tire" conclusions reached by the learned 'justice at- the Special. Term,-' and; the -judgment entered Upon his decision must .be affirmed, with costs to, be paid by the appellants. -

-Patterson, O’Brien, .Ingraham and Barker,. JJ.,.'concurred.

Judgment affirmed, with costs to be paid by. appellants.  