
    Cornelius McLean, App'lt, v. George H. McLean et al, Resp'ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 12, 1892.)
    
    Partition—Cestuis que trust cannot maintain.
    The father of the parties, by his will, gave the remainder of his estate to his executors in trust to apply one-half the income to each of his sons during his natural life, and at his death to pay one-half the estate to his issue. A power of appointment was given to each son as to a certain portion of his share. Held, that the sons had no legal title in the estate, but were simply beneficiaries for life, and could not maintain partition.
    Appeal from judgment dismissing the complaint.
    Action for partition.
    
      Norman A. Lawlor, for app’lt;
    
      Clifford A. Hand, for resp’ts.
   Barnard, P. J.

James McLean died in 1890, leaving a last will. By this will, after giving certain money legacies to one of his sons and to John Ordig and James L. Wallace, and after creating a trust for a grandchild for $5,000, he gave all the remainder of his estate, real and personal, to his executors. The •executors were to retain the estate as trustees and to apply the half income thereof to each of his two sons, Cornelius and George H. McLean, during his natural life. At the end of the life estate of each the one-half of the estate was to be paid over to the then living issue. There was a power of appointment given each son to will a certain portion of his share of the estate. The two sons survived the testator. The plaintiff brought this action for a partition of the real property of deceased. The answer of the other son sets up the will and it was proven in the case. The plaintiff has no legal title in the estate. He is simply a beneficiary for life in one-half thereof, the legal title being in the executors. The trust was one of the express trusts authorized by statute. 1 R. S., 728, § 55.

The complaint was properly dismissed and the judgment should be affirmed, with costs.

Pratt, J., concurs ; Dykman, J., not sitting.  