
    Matter of the Petition of Frederick A. Magenheimer and Julius Lehrenkrauss, Jr., to Render and Settle Their Intermediate Account as Trustees under the Last Will and Testament of Louis Magenheimer, Deceased.
    (Surrogate’s Court, Kings County,
    April, 1916 .)
    Trusts — devise in trust — infants — wills — when devise to trustees subject to power of sale — accounting by trustees.
    Testator, who left but one minor child, gave one-third of his estate to his executors in trust to pay the net income to his wife during her life or widowhood, with direction in the event of her death or remarriage to pay to testator’s children then under age the net income of a separate one-fifteenth of said trust estate. Held, that in the event of death or remarriage of testator’s widow each child then of age took one-fifteenth of the fund as a devise.
    Where as to the remaining two-thirds of testator’s estate one-fifth thereof or two-fifteenths of the estate was devised to each child who should be of age at the death of testator, any child then under age took a devise in trust of one-fifteenth of the estate the net income thereof payable to him during minority and the principal of such two-fifteenths at his majority.
    Where a devise of testator’s lands whether to trustees or individuals is subject to a power of sale in the executors alone, though they are also the trustees, they, on accounting as trustees, are only entitled to commissions upon that portion of the estate devised to them in trust.
    
      Proceeding upon the settlement of the intermediate account of trustees.
    Reynolds & Geis (Leonard J. Reynolds, of counsel), for trustees.
    William P. Pickett, special guardian.
   Ketcham, 3.

The will under which this accounting is made contains implied trusts and, therefore, devises in trust to the executors.

Under one of these one-third of the estate is given in trust to pay the net income thereof to the wife during her life or widowhood, and in the event of her death or remarriage to pay to each of the testator’s children then under age the net income of a separate one-fifteenth of the fund so given in trust for the minority of such child.

In the event of the death or remarriage of the wife there is devised to each child then of age a one-fifteenth of the said fund.

As to the remaining two-thirds of the estate, there is a devise of a one-fifth share thereof, or two-fifteenths of the estate, to each child of the testator who shall be of age at the death of the testator. As to any child then under age, there is a devise in trust of two-fifteenths of the estate to pay to such child the net income thereof during minority, and to pay to him the principal of such two-fifteenths upon his attaining majority.

This construction is required by authority. Seitz v. Faversham, 205 N. Y. 197; Mee v. Gordon, 187 id. 400; Matter of Dewey, 153 id. 63; Ward v. Ward, 105 id. 53; Morse v. Morse, 85 id. 53.

The rule to which this will is subject has never received better expression than in the case of Ward v. Ward, supra, in which it is said: “ 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. ’ ’

None of the cases cited by the special guardian contain any denial or modification of this principle of construction. Those in which it was found that a trust could not be implied were expressly based upon the recognition and use of this principle.

The testator left only one minor child, and the observations supra with respect to trusts for infant children are limited accordingly.

The executors named in the will are also the trustees, but the power of sale under which lands have been sold is given in name to the executors only. While this power might vest in the trustees as an adjunct of the trust, if the lands sold were wholly embraced in the trust, it must be otherwise when eight-fifteenths of the lands were devised to individuals and seven-fifteenths were devised to the trustees.

In such case it would be impossible for the trustees, in pursuance of their trust, to sell any part of the eight-fifteenths ; and it would be scarcely conceivable that an undivided portion of the lands could be sold by the executors and another portion sold by the trustees.

It is according to the text of the will that the executors may sell the entirety, while it is contrary to the testamentary expression that the trustees can do so.

The solution, which coincides with reason as well as the letter of the will, is that the power resides in the executors alone, and that the devise, whether to trustees or individuals, was subject to the exercise of the power.

Hence commissions upon the proceeds of the sale under the power might well be awarded to exécutors upon an accounting in that capacity, but in this ■ account, which is confined to the trust, there can be commissions to them as trustees only, to be calculated upon seven-fifteenths of the proceeds, and the income therefrom. This calculation must be upon a trust estate less than $100,000 in value, since it cannot include all the proceeds of sale.

The decree may proceed accordingly.

Decreed accordingly.  