
    Sarah James Tredwell and Alonzo S. Tredwell, as Trustees Under the Last Will and Testament of Alanson Tredwell, Deceased, Plaintiffis, v. James C. Tredwell, Susie S. Smith, William F. Rowland, Individually and as Executor of the Last Will and Testament of Idabell Rowland, Deceased, Belle Tredwell, Individually and as Administratrix of the Goods, Chattels and Credits of Wesley S. Tredwell, Deceased, and Adelaide C. Tredwell, Belle A. Tredwell, Dorothy Tredwell, Alanson Tredwell, and Catherine J. Tredwell, Sarah A. Tredwell, Roger C. Tredwell and Jessie C. Tredwell, Defendants.
    (Supreme Court, Kings Special Term,
    June, 1914.)
    Wills—Action fob construction of—Creation of valid express trust UNDER SECTION 96 OF. REAL PROPERTY LAW-WHEN TESTATOR’S CHILDREN HAD IMMEDIATE BIGHT OF POSSESSION-No POWER IN TRUSTEES TO LEASE REAL ESTATE FOR TERM BEYOND TRUST PERIOD UNLESS AUTHORIZED BY SUPREME COURT.
    By the third paragraph of his will testator devised and bequeathed his residuary estate to his wife and to his sons W. and A., and to the survivors or survivor of them in trust to keep the personal estate invested in first-class securities, receive the income therefrom and the rents, issues, income and profits of the real estate, and after paying all expenses necessary for the proper care, preservation and management of the estate to pay to testator’s widow $3,000 per annum for her own use, support and maintenance during her life and to pay the balance of the entire estate in equal shares to testator’s five children, to whom by the fourth paragraph of the will, upon the death of their mother, the entire estate was given share and share alike, absolutely. Testator was survived by his widow and all his children, but before the probate of his will W., a son, died intestate survived by his widow and four minor children, and one of testator’s daughters also died before said probate leaving no descendants, and by her will all of her estate was given to her surviving husband. In an action for the construction of the will, held, that a valid express trust under section 96 of the Beal Property Law was created by the third paragraph of testator’s will.
    That by the fourth paragraph of said will each of testator’s children took vested remainders in the residue of the estate which vested on the death of testator and were not limited on the death of their mother, and on the termination of the precedent estate of their mother the children had an immediate right of possession. •
    That as each of the children took such a vested remainder, each had an expectant estate under section 59 of the Real Property Law which was descendible, devisable and alienable in the same manner as an estate in possession, and that the estate in remainder of the deceased daughter passed under her will to her husband; that the estate-in remainder of the deceased son descends and is distributable to his heirs and next of kin respectively; that part of the estate consisting-of realty descends to his children, but his widow has no right of dower therein; that part of the estate consisting of personalty is distributable one-third to his widow and one-sixth to each of his four children.
    That testator not having expressly provided for the contingency of the death of his two children before his widow, the shares of income bequeathed to said children respectively are undisposed of by the will.
    That the bequest of the income to the five children of testator named in the third paragraph of his will was given to them as tenants in common and not as a class, hence the shares of income given to the two deceased children did not pass to the surviving children of testator, the case coming squarely within section 63 of the Real Property Law.
    That the trustees had no power to lease the real estate for terms extending beyond the trust period unless authorized by an order of the Supreme Court.
    Action for the construction of a will.
    Francis Stockton McDivitt, for plaintiffs.
    William H. Stryker, for defendant Rowland.
    Samuel Green, for defendants Tredwell.
    Alvah W. Burlingame, Jr., for guardian ad litem.
    
   Kelby, J.

The trustees under the will of Alans on Tredwell bring this action to construe certain provisions of the last will of the testator. The will was probated July 19, 1911, the testator leaving Mm surviving Ms widow, Sarah James Tredwell,, and five children, viz., James C. Tredwell, Idabell Rowland, Wesley S. Tredwell, Alonzo Slote Tredwell and Susie S. Zmith. The widow and three children are still living. Wesely S. Tredwell, a son, died intestate June 25, 1911, leaving him surviving his widow, Belle Tredwell, and four minor children, Adelaide C., Belle A., Dorothy and Alanson. Idabell Rowland, a daughter of testator, died April nineteenth, leaving no descendants. Her will, duly probated, gives all her estate to her surviving husband, William F. Rowland. The main questions at issue in the case arise out of the following provisions of the will: Third. All the rest, residue and remainder of my estate, both real and personal, of every name and nature and wheresoever situated of which I shall be the owner, seized or possessed, or to which I shall be entitled at the time of my death, I give, devise and bequeath tinto my beloved wife Sarah James Tredwell, my son Wesley S. Tredwell and my son, Alonzo Slote Tredwell, M. D., and to the survivors or survivor of them, in trust, to enter upon and take possession of the same, and to invest and keep invested in first-class securities my personal estate, and to receive the interest, income and profits of my personal estate, and the rents, issues, income and profits of my real estate during the natural life of my said wife Sarah James Tredwell, and after paying out of my estate all taxes, assessments, insurance premiums, interest, repairs and any other expenses which shall be necessary for the proper care, preservation and management of my estate, to pay unto my beloved wife Sarah James Tredwell the sum of three thousand (3,000) dollars per annum, in equal quarterly payments for her own use, support and maintenance during her natural life, and to pay the balance of such rents, issues, profits, interest and income of my estate in equal quarterly payments unto the following named, my children, for their own use and benefit, that is to say: One-fifth part thereof unto my son James C. Tredwell; one-fifth part thereof unto my daughter Idabell Rowland; one-fifth part thereof unto my 'son Wesley S. Tredwell; one-fifth part thereof unto my son ■Alonzo Slote Tredwell, M. D., and one-fifth part thereof unto my daughter Susie S. Smith. Fourth. Upon the death of my wife Sarah James Tredwell I give, devise and bequeath all my said estate, both real and personal, as above stated, unto my five children■, namely, James C. Tredwell, Idabell Rowland, Wesley S. Tredwell, Alonzo Slote Tredwell, M. D., and Susie S. Smith, -eually, share and. share alike, their heirs and assigns forever.” The provisions of the will just quoted in paragraph third clearly creates a valid express trust under section 96 of the Real Property Law. Stringer v. Young, 191 N. Y. 157. By the fourth paragraph of the will just quoted each of the five children took vested remainders in the residue of the estate. Their remainders vested on the death of the testator and are not limited on the death of their mother. The children named have an immediate right of possession on the termination of the precedent estate of their mother. Connelly v. O’Brien, 166 N. Y. 406. As each of the children took a vested remainder, they each had an expectant estate under section 59 of the Real Property Law which 66 is descendible, devisable and alienable in the same manner as an estate in possession.” Therefore the estate in remainder of the deceased daughter, Idabell Rowland, passes under her will to her husband, William F. Rowland. In like manner the vested estate in remainder of the deceased son, ¡Wesley S. .Tredwell, descends and is distributable to his heirs and next of kin, respectively. That part of the remainder, therefore, that consists of realty descends to his children Adelaide C. Tredwell, Belle A. Tredwell, Dorothy Tredwell and Alans on Tredwell. The widow of the testator’s deceased son, Wesley S. Tredwell, has no right of dower in the part of said remainder that consists of realty. The estate of the husband must be a present freehold in possession as well of an estate of inheritance before dower attaches. Therefore, when the husband, as in this case, has but a vested remainder expectant upon an estate for life, the widow is not endowed. Durando v. Durando, 23 N. Y. 331; House v. Jackson, 50 id. 161. As to that part of Wesley S. Tredwell’s vested remainder that consists of personalty that is distributable under the Decedent' Estate Law, one-third to the widow and one-sixth to each of Wesley S. Tredwell’s four children, above named. Another question arises by reason of the testator’s not expressly providing for a contingency that has happened, namely, the death of two of testator’s children before his widow. The shares of income bequeathed to Idabell Rowland and Wesley S. Tredwell, respectively, are undisposed of by the will. The bequest of the income was to the five children of the testator named in paragraph third of the will as tenants in common and not as a class. Hence the shares of income bequeathed to Idabell Rowland and Wesley S. Tredwell do not pass to the surviving three children of the testator. Tompkins v. Verplanck, 10 App. Div. 576; Delafield v. Shipman, 103 N. Y. 463. Section 63 of the Real Property Law applies to the situation here presented, and reads as follows: 66 When, in consequence of a valid limitation of an expectant estate, there is a suspension of the power of alienation, or of the ownership, during the continuance of which the rents and profits are undisposed of, and no valid direction for their accumulation is given, such rents and profits shall belong to the persons presumptively entitled, to the next eventual estate.” In the case at bar all of the elements just recited in the statute are present. The disposition of undisposed income from personalty is the same as that from realty. Cook v. Lowry, 95 N. Y. 103, 108; Matter of Harteau, 204 id. 292, 300; Pers. Prop. Laws, § 11. The next eventual estate is 66 the estate which is to take effect upon the happening of the event which terminates the accumulation.” In the case at bar that event is the death of testator’s widow. As each of the deceased children, Idabell Rowland and Wesley S. Tredwell, took a vested estate at the death of the testator which was devisable and descendible, the executor of the estate of Idabell Rowland and the administrator of the estate of Wesley S. Tredwell are the respective persons entited to the next eventual estate for the purposes declared by the testator. Young v. Barker, 141 App. Div. 801, 807; Matter of Tompkins, 154 N. Y. 634. In Phelps v. Pond, 23 N. Y. 83, the court said: “ The statute is founded upon the presumption that the donor of property may naturally be supposed to intend 'that the income should go to the same person to whom he had given that out of which the income arises.” Plaintiffs also ask to have determined in this action the following questions, viz.: “ Have the trustees the power to make leases of real estate for terms extending beyond the trust period? ” The trustees, in my opinion, have no such power unless they are authorized by an order of the Supreme Court to make a lease for a term of years which may exceed the trust period. Real Prop. Law. § 106; Weir v. Barker, 104 App. Div. 112; Matter of City of N. Y., 81 id. 27; affd., 179 N. Y. 572; Corse v. Corse, 144 id. 569; Fowler Real Prop. Law (3d ed.), 516 et seq. Submit findings of fact and conclusions of law and proposed judgment, with memorandum as to costs to be allowed the various parties.

Judgment accordingly.  