
    (120 App. Div. 430)
    GRAHAM v. ACKERLY et al.
    (Supreme Court, Appellate Division, Second Department.
    June 7, 1907.)
    Trusts—Rower of Trustees Under Will to Convey—Marketable Title.
    '"Testator gave all his property in trust, and directed the trustees, after pi?yr«>:: other debts and funeral expenses, to pay the interest and $500 si . ir principal, or as much as the trustees saw fit, on the bond and mortis?. a the property, till paid in full; to pay $1,000 to his sister as soon as : i ■ rents and income would permit, and then to make yearly pay-m . > a son; and empowered the trustees, on the death of certain
    persons, or, in their discretion, eight years after the death of testator, to soil the property and pay certain legacies. Held that, though there Wits an invalid provision for accumulation, there was enough vitality! and power left in the will to empower the trustees to make a valid coni trace of Side of and give a marketable title to the real estate eight yearj after i -tor’s death. 1
    Subnu sí- , of case between John Graham and Nathaniel S. Ackerfl and anoíái.-f, as trustees of and under the will Viliam Ackerlj» decease?! judgment for defendants. *
    Submission of controversy upon an agreed caso. Th*' ties en.v-erod into a contrajet in writing: ilw rale of the premises No. 1f„ 3'jS)adwa.y, ¿>ro° lyn. Tifie plaintiff pa -! defendants $390 as part paytnW 5 the purchase money/. The plaintiff ,..c. - ico tie title offered i-;\ deitetid ts as not miwketahl- : it, 1 submits this case, art ng for judgment oaiuir.f oféndante for $oW. Tli iulauts claim to have title to the .property mi inestion as trustee.. unc-ivi1 the ..ill of William Ackerly, who owned this propety at his death, ami thoy derive the right to convey the property from said wl. Testator by wilfl gave all his property to defendants in trust, with p wer of sale for v 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 Sara^h E. Sammis 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 d-¡i'em it wise before their death, if eight years after the decease of testator, -which occurred July 9, 1894, aiid to pay certain legacies, which are again directed by the will to be made proportionally if the amount of the estate is mot 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 dtoubtful question of law, and that the title offered by defendants is therefore not marketable.
    Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, HOOKER, and GAYNOR, JJ.
    William Neff, for plaintiff.
    S. Le R. Ackerly, for defendants. ,
   WOODWARD, J.

There Is no primary trust herein, as in. Hascall v. King, 162 N. Y. 134, 56 N. E. 515, 76 Am. St. Rep. 302. The accumulations go on from the very start, for the trustees are directed, after paying debts and funeral expenses, “to pay the interest and $500 a year principal, or 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,. N. J., the sum of $j|.,000 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 thé will is secondary to the clause creating the accumulations, which ate prohibited by statute, and therefore the principle of Hascall v. King must apply to that portion of the will. "\

But the will vests the title to the real estate in the defendant^, 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 JJascall v. ing to this will, enough vitality and power are left in it, and, through t, power to thlp defendants, to make a valid contract of sale and to ive a marketable title to the plaintiff of the said premises, and there-ore this action ri,nnot be maintained. \

JudgmentfKS"tof,,efendants on submission of controversy/! without costs. AIM concur.  