
    In the Matter of the Application of Samson L. Toplitz et al., as Executors, Appellants, for a Construction of the Will of Emma I. Toplitz, Deceased. Florence R. Doctor, Respondent.
    
      Will — power of sale —• where, owing to failure of trust provision, no part of decedent’s real property passes under will executors are without authority to convey property under power of sale contained in will.
    
    
      Matter of Toplitz, 191 App. Div. 477, affirmed.
    (Submitted October 5, 1922;
    decided October 24, 1922.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 28, 1920, which affirmed a decree of the New York County Surrogate’s Court construing the will of Emma I. Toplitz, deceased, and adjudging that there is no valid subsisting power of sale therein contained. Decedent, by her will, left her entire residuary estate in trust for ■the benefit of her son and by a clause thereof provided: “ I hereby authorize and empower the executors and trustees hereinafter named or the survivor of them, to sell, mortgage, convey, lease or otherwise dispose of any and all my property, real, personal and mixed of whatsoever nature and description and wherever the same may be situated at such time, in such manner and upon such terms as they in their discretion or in the discretion of the survivor of them may deem proper.” The beneficiary of the trust predeceased the testatrix and as a result the trust failed. It was held that, inasmuch as no part of decedent’s real property passed under her will, the executors had no interest therein and were without power to convey the same.
    
      William F. Unger and Samuel Rubin for appellants.
    
      Milton S. Hoffman for respondent.
   Order affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Hogan, Cardozo, Pound, McLaughlin, Crane and Andrews, JJ.  