
    Teresa M. Kondolf and Others, as Executors of and Trustees under the Last Will and Testament of Mathias Kondolf, Late of Rochester, N. Y., Deceased, Plaintiffs, v. Willis N. Britton, Defendant.
    Fourth Department,
    January 21, 1914
    Will — unauthorized trust — power in trust — meaning of word “children”— authority of trustees to convey real property—submission of controversy — omission of necessary parties.
    A testator devised his entire estate in trust to his executors as trustees to continue his business and pay to his widow a certain amount during the minority of all of his children. Thereafter the trustees were to render an accounting and then distribute two-thirds of the estate among the living children and the descendants of the deceased children per stirpes, and invest the remaining one-third for the life of the widow and pay her the income. Upon her death they were directed to distribute such one-third among the children and descendants of deceased children per stirpes. The trustees were given express power to sell and convey the real property for the sole purpose of effectuating the provisions of the will. At the testator’s death all of his children and all of the descendants of deceased children, except one, had attained their majority, and one-third of his estate consisted of personal property.
    Held, that the word “children,” as used by the testator, did not include the “grandchildren;”
    That the attempted trust is unauthorized by section 96 of the Real Property Law;
    That, since the defendants claim that the attempted trust may not be executed as a power in trust, the court cannot decide a controversy as to the capacity of the trustees to convey the real property, submitted upon an agreed statement of facts, where the children and descendants of deceased children are not parties to the proceeding.
    Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.
    
      Charles B. Bechtold, for the plaintiffs.
    
      George A. Carnahan, for the defendant.
   Lambert, J.:

This is a submitted controversy upon an agreed state of facts. The plaintiffs are the vendors and the defendant is the vendee in a certain contract of purchase and sale of real property, wherein it is agreed by plaintiffs that they will convey unto defendant a good and marketable title to the premises involved. The conveyance tendered presents the sole controversy. Such deed is executed by plaintiffs in their capacity as executors and trustees under the last will and testament of one Mathias Kondolf, deceased; and it is urged that such conveyance is wholly ineffectual to transfer the title.

The determination of the controversy turns wholly upon the construction to be placed upon decedent’s will in connection with the stipulated facts. This will was made some years prior to testator’s decease. It is voluminous but is not complex in its general scheme. At the time it was made testator’s wife and twelve of his fourteen children were living. Two children had died, one of such leaving one descendant and the other two. Five of the children were then minors as were the descendants of the deceased children.

In general outline the scheme of the will is as follows: The entire estate is devised, in trust, to the executors, as trustees, for the purposes of the will. Such trustees are authorized to continue testator’s business and required to pay to the widow $4,000 per annum during the minority of all the children. When all such children attain their majority, then such trustees are required to go into court and render an accounting. Following the determination of the corpus of the estate in that manner, they are required to distribute two-thirds of the estate among the living children and the descendants of the deceased children per stirpes. They are further authorized and directed to invest the remaining one-third of the estate for the life of the widow, and to pay to her the income thereof during her life. Upon her death they are likewise directed to distribute such one-third among the children and descendants of deceased children per stirpes. For the sole purpose (so expressed) of effectuating the purposes of the will such trustees are given express power to sell and convey real property.

At testator’s death all his children had attained their majority, as had the descendants of deceased children, except one, and, therefore, there remained no duty for the trustees to perform by way of conserving the estate during the minority of the children. For, in this connection, it must be held that in its reference to the minority of the “children” the will does not include the grandchildren within the term “children.” There was left then (assuming the will to be valid and susceptible of execution) for the trustees to perform only the duty of distributing two-thirds of the estate among the children and descendants of deceased 'children, and of investing the remain1 ing one- third for the benefit of the widow and to distribute it upon her death. In such connection it is agreed that one-third the estate is in personalty, so that it is not essential to resort to the real property to carry out the provisions for the benefit of the widow.

The defendant urges that the attempted trust is void, or at least inoperative, for the reason that all the children attained majority prior to testator’s decease, and, further, that the expressed power to convey real property being limited to the purposes of the will, the same falls with the trust; that, therefore, the children and descendants of deceased children took title by inheritance, and, therefore, the conveyance should come from them.

We think it must be held that the attempted trust is not within the category of permitted express trusts set forth in section 96 of the Beal Property Law (Consol. Laws, chap. 50; Laws of 1909, chap. 52). Therefore, as a trust (using that term in its strict sense) the same is void. And it would follow that the trustees took no title as such. (See Beal Prop. Law, § 99 et seq.)

This does not, however, dispose of the controversy, as it is possible that the void attempted trust might be held to be susceptible of execution as a power in trust. The purposes of a power in trust are unlimited, except that they must be lawful purposes. The defendant, however, .combats the validity of the provisions regarded as a power in trust, and thereby arises the reason why this proceeding must be dismissed without a determination of the questions.

It seems clear that, regarding the attempted trust as a power rather than a trust, then the title to the real property descended by inheritance and vested in the children and descendants of deceased children subject to a possible defeasance through the exercise of such power. The holders of the title are not parties to this submission. The judgment sought is based in part, upon stipulated facts, to which stipulation they have not acceded. We are asked to render a judgment which may result in divesting them of their title, in case we hold the provision valid as a power. How will such heirs be bound by a judgment rendered herein ? Even if it can be said that the beneficiaries of a trust are bound by a judgment against a trustee therein, it is difficult to see how they are bound by stipulations made by such trustee. And, further, there being no trust, we cannot see how the heirs are foreclosed from later attack upon any transfer made following any judgment we might render herein.

Under the authority of Coughlin v. Fay (68 Hun, 521) and Kelley v. Hogan (69 App. Div. 251) we must decline to determine the controversy, and leave- the parties to their action, in which all parties in interest may he brought in.

The action should he dismissed, without costs.

All concurred.

Action upon the submission dismissed, without costs.  