
    John Graham, Plaintiff, v. Nathaniel S. Ackerly and Isaac M. Sammis, as Trustees of and under the Will of William Ackerly, Deceased, Defendants.
    Second Department,
    June 7, 1907.
    Beal property — will creating discretionary power of sale —vendee compelled to take title.
    Although a direction to testamentary trustees to pay from, the income of lands the interest andprincipa-l of a mortgage may be invalid as creating an unlawful accumulation, yet when the trustees, are given discretion to sell the lands ' within eight years of the testator’s death-, a vendee will he required to accept a. title offered by/the trustees although the contract was made after the expiration of the eight years, if the' question of the validity of the will or- the power of the trustees is not raised by the beneficiaries'. - - • .
    Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil-Procedure.'■ .
    
      . The parties entered into a contract in writing for the sale of the premises bio. 124 Broadway, Brooklyn. • The plaintiff paid defendants $300 as part paymént of the purchase money.
    The plaintiff rejected the title offered by. defendants as not marketable, and submits this case asking for judgment against defendants for $300. .
    . The defendants claim to have title to the property in question as trustees under the will of William Ackerly, who owned this property at his death, and they derive the right to convey the property from said will.
    "Testator by his will gave all his property to defendants in trust, with power of sale for the purpose of carrying out the provisions of his will. The will directs a certain mortgage to be paid off, and after that is done certain-bequests are made which the will directs shall abate proportionally if the income and interest from the estate is not sufficient to pay in full.
    Upon the death of Sarah E. Satnmis and James Ackerly, daughter and son of the testator, the defendants are directed to sell and dispose of his estate, or to do that if they deem it wise before their death, if eight years after the decease of testator, which.occurred July 9, 1894, and to pay certain legacies which are again directed by the will to be made proportionally if the amount of the estate is not sufficient to pay them in full.
    The plaintiff’s contention is that .the general testamentary scheme of testator is so far unlawful that the validity of the power of sale given as a part of it, depends upon the determination of a doubtful question of law, and that the title offered by defendants is, therefore, not marketable. ■
    
      William Neff, for the plaintiff.
    
      S. LeR Ackerly, for the defendants.
   Woodward, J.:

There, is no primary trust herein as in Hascall v. King (162 N. Y. 134).

The accumulations go on from the very start, for the trustees are directed, after paying debts and funeral expenses, “ to pay the interest and Five hundred dollars a year principal ór as much more as • my said trustees see fit on the bond and mortgage. on my property till 'it is paid in full; to pay to my sister Martha Noyler of Rahway, 'New Jersey, the sum of One Thousand Dollars as soon as'the rents and income will permit, and then to pay yearly to my son,” etc. It will be seen that every other provision of .the. will.is secondary to the clause creating the accumulations which are' prohibited by statute, and, therefore, the- principle of Hascall v. King (supra) must apply to that portion of the Will.

But the will vests the title to the real estate in the'defendants, and, furthermore, it directs them to sell the same in their discretion eight years after testator’s death, which occurred July 9,- 1894. The contract of sale is dated August 3, 1906, and the limitation of time of sale, therefore, had expired.

After such.sale defendants are ordered to pay certain legacies in full .or proportionately. . .

The question of the validity of .this will or its power is. not raised by any heir; it is - raised by the plaintiff, who is one of the parties • to said contract of sale.

■I am of-the opinion that, after applying the principle of Hascall v.King to this will, enough.vitality and power are left in it, and, through it, power to the defendants to make a valid contract of sale, and to give a marketable title' tó the plaintiff of the said.-premises, and, therefore, this action cannot be maintained.

IIiesohbeeg, P. J., Jenks, Hookeb and Gayuóe,. JJ., concurred.

■ Judgment for defendants .on submission of controversy,.-without costs. 
      
       See 1 R. S. 726, §§ 37, 38; revised in Real Prop. Law (Laws of 1896, chap. 647), §61.—[Rep. . '
     