
    Matter of Estate of Fisher.
    (Surrogate's Court — New York County,
    June, 1893.)
    
      A direction in a will for the application of a stated percentage of the net income of the trust estate to the discharge of mortgages on real estate forming a part thereof is invalid, not only for the reason that it essays to set up a trust for a purpose prohibited by the Revised Statutes, but also because it involves an accumulation of income for a purpose not permitted.
    Where there is a general direction to satisfy mortgages on real estate out of income, without specifying the method by which such purpose is to be effectuated, query, whether the court has power to carry out the same by a sale for a term of years?
    By the eleventh paragraph of the will of deceased, which was admitted to probate October 31,1889, among other things, he provided as follows: “And I do fully empower and direct
    toy executor and trustee to reduce and pay off by installments •or otherwise, as far as possible and convenient in their discretion, any and all mortgages on any portion of my estate, and for this purpose I empower them in their discretion to use and apply the proceeds of such of my real estate as they may sell and dispose of, and fifteen per cent of the net income of my estate after the payment of all taxes, assessments, commissions, interest on mortgages, insurances, repairs and other ■expenses, and the marriage annuities and allowances provided for in the marriage contracts of my two daughters, and all •other annuities, gifts, bequests, devises and provisions of this, my last will and testament.”
    Upon the judicial settlement of the account of the executor, ■construction of the clause quoted was prayed for.
    
      Ed/uoa/rd W. Sheldon, for executor.
    
      Richard E. O lárice and James E. Kelly, special guardians, for infants.
   Ransom, S;

The direction in the will of decedent for the •application of a part of the income of the trust estate for the payment of mortgages on the real estate forming part thereof is invalid, as it provides for an accumulation of such income for a purpose not permitted by the statute. Such income, whether composed of the rents and profits of real estate, or the interest, profits or income of personal property, can be accumulated for the benefit of minors only, and must terminate at the expiration of their minority. Art. 1, tit. 2, chap. 1, §§ 37, 38 ; 4 R. S. (8th ed.) art. 2, pp. 2434, 2435; Id. part 2, tit. 4, chap. 4, §§ 3,4, pp. 2516, 2517. That there might be enough income annually received available for the discharge of the mortgages without resorting to or accumulating income of previous years, is a circumstance that I do not think would relieve the provision from the ban of the statute. To the extent that the income is applied towards the payment of the mortgages on the real estate, to that extent is such income preserved and accumulated. It goes into and forms part of such estate and increases the capital, the income of which is distributable under the trusts in the will, and the augmented principal ultimately. The provision is, in effect, precisely the same as if the testator had, in so many words, required the trustee to apply the income to swell the principal of the trust fund. It is distinguishable from the case of an annuity, payable out of the income of real estate held in trust, or payable in the manner formulated in the decree which was entered in the case of Hawley v. James, 16 Wend. 275, in that the amount paid on account of the annuity is paid outright, and neither directly or indirectly enters into the corpus of the estate. The disposition is also objectionable on the- ground that it is an attempt to create a trust of real estate not authorized by law. Section 55, article 2, title 2, chapter 1, part 2, 4 Revised Statutes (8th ed.), page 2437, prescribes the cases in which an express trust of real estate may be created, and, in subdivisions 3 and 4, enumerates the objects and purposes for which the rents and profits of land may be received and applied. The discharge or payment of mortgages is not - one of them. Subdivision 2 permits the leasing of lands for the benefit of legatees or for the purpose of satisfying any -charge thereon. Although the mortgages in question are charges on land of testator, no intention to create a trust for their satisfaction in accordance with this subdivision is disclosed by the will. The provision might, however, be effectuated by regarding it as a direction for leasing under this subdivision and by adopting a method in carrying out the direction which would not necessitate the periodical taking and appropriation of the rents and profits by th§ trustee. The term could be leased or parted with, and the whole rent or consideration therefor paid down at once and in advance. In other words, a sale of the term might be effected. Hawley v. James, 16 Wend. 152, 154, 155, 156, 165, 257, 258, 273; Rogers v. Tilley, 20 Barb. 643. The course suggested is, however, not feasible in the present case. Its adoption would derange and defeat the scheme and purposes of the testator with respect to the care and management of his estate by the trustee and the administration of the trusts constituted by his will. The contention of the accountant with respect to the questions considered is sustained.  