.24 N. Y. Supp. 277 Rowland v. Rowland.... Order affirmed. 86 N. E. 504, 141 N. Y. 485. Russell v. McCall.... ..... Order of general term reversed and judgment of special term affirmed. 36 N. E. 498, 141 N. Y. 437. Ryan, In re.. Order affirmed. 86 N. E. 343. St. John v. Coates..... Judgment affirmed. 35 N. E. 891, 140 N. Y. 634. .18 N. Y. Supp. 419 Judgment reversed and new trial granted. 35 N. E. 969, 141 N. Y. 12. Judgment reversed and new trial granted. 35 N. E. 786, 140 N. Y. 640. Judgment affirmed. 36 N. E. 739. Order reversed. 35 N. E. 630, 140 N. Y. 321. Ten Eyck v. Rector, etc., of Protestant Episcopal Church. .20 N. Y. Supp. 157 Thomas v. Gage. ..20 N. Y. Supp. 269 Judgment reversed. 36 N. E. 385, 141 N. Y. 506. Truslow, In re. .24 N. Y. Supp. 586 Judgment modified and as so modified affirmed. 35 N. E, 953, 140 N. Valentine's Estate, In re... .22 N. Y. Supp. 195 Judgment affirmed. 36 N. E. 344. Vanderpoel v. Goi man. ..22 N. Y. Supp. 541 Judgment reversed and new trial ordered. 35 N. E. 932, 140 N. Y. 563. Van Slooten v. Wheeler...... .21 N. Y. Supp. 329 Judgment of general term reversed and that entered upon report of referee affirmed. 35 N. E. 583, 140 N. Y. 624. .26 N. Y. Supp. 1129 West Side R. Co. of Elmira v. New York, L. E. & W. R. Order affirmed. 36 N. E. 343. Wharton, Jr., & Co. v. Winch...... ....19 N. Y. Supp. 477 Judgment reversed and new trial granted. 35 N. E. 589, 140 N. Y. 287. White v. Boody... Order affirmed. 35 N. E. 1092, 141 N. Y. 123. .26 N. Y. Supp. 294 Judgment reversed and new trial granted. 35 N. E. 589, 140 N. Y. 287. Order of general term reversed and that of special term afirmed. 36 Zoliewski v. New York Cent. & H. R. R. Co..... .22 N. Y. Supp. 1119 ...21 N. Y. Supp. 916 .24 N. Y. Supp. 277 .24 N. Y. Supp. 48 .22 N. Y. Supp. 1119 Judgment affirmed. 35 N. E. 891, 140 N. Y. 621. See End of Index for Tables of New York Supplement Cases in other Reports. THE New York Supplement. VOLUME 27. (75 Hun, 239.) RAYMOND et al. v. ROCHESTER TRUST & SAFE DEPOSIT CO. (Supreme Court, General Term, Fifth Department. WILLS-CONSTRUCTION-TRUSTS. January 18, 1894.) Testator bequeathed all his property, real and personal, to his wife for life, and authorized his executors, out of any moneys that might come into their hands, to pay all taxes and interest, etc., on incumbrances on the real estate, and to sell and dispose of any of the real estate. Held, that the will created a trust as to the personal property, which could not be divested or extinguished during the lifetime of the widow. Submission of controversy without action under Code Civil Proc. § 1279, between Harriett A. Raymond, Dora V. Rappleyea, and Ina Jane Lotzar, as plaintiffs, and the Rochester Trust & Safe-Deposit Company, administrator with the will annexed of Henry B. Raymond, deceased, as defendant. Judgment for defendant. Argued before DWIGHT, P. J., and HAIGHT and LEWIS, JJ.. W. H. Shuart, for plaintiffs. W. N. Cogswell, for defendant. DWIGHT, P. J. The controversy here submitted relates to the construction of the will of the defendant's testator, of which the following is the text, complete, viz.: "I, Henry B. Raymond, of the city of Rochester, Monroe county, N. Y., do make, publish, and declare this, my last will and testament, as follows, to wit: "First. After all my lawful debts and funeral expenses are paid, I give, devise, and bequeath to my wife, Hattie A. Raymond, the use of all my real and personal property, including all life-insurance moneys, during the term of her natural life, or so long as she shall remain my widow, charging and directing, however, that my said wife give and furnish to my father, Alexander R. Raymond, a good and comfortable support and maintenance during his natural life. "Second. After the death or remarriage of my said wife, I give, devise, and bequeath the rest, residue, and remainder of my property to my children, Frank H. Raymond and Dora S. Rappleyea, forever, share and share alike. "Third. I authorize my executors, hereinafter named, out of any moneys which may come into their hands, to pay any and all taxes, interest, or v.27 N.Y.s.no.1-1 payments on incumbrances on my real estate, which in their discretion may be necessary and proper; and I further authorize and empower my said executors to sell and dispose of any and all of my real estate, and give good and sufficient deeds of conveyance therefor. "I hereby constitute and appoint my said wife, Hattie A. Raymond, and John C. Bertholf, of the city of Rochester, Monroe county, N. Y., as the executors of this, my last will and testament, revoking hereby all former wills by me made. "In witness whereof I have hereunto set my hand, and affixed my seal, this 23rd day of February, 1891. [Signed] "Henry B. Raymond. [L. S.]" The specific question submitted is whether this will, by its third clause, creates a trust as to personal property which cannot be divested or extinguished during the lifetime or widowhood of the widow, the plaintiff Harriett A. Raymond. Letters testamentary were originally granted to John C. Bertholf, above named, as one of the executors of the will, but they were subsequently revoked, and letters of administration with the will annexed were issued to the defendant. The controversy arises under the following circumstances: The devisee and legatee in remainder Frank H. Raymond has sold all his interest in the estate, real and personal, to the plaintiff Lotzar, and the latter, with the other legatee and devisee in remainder, Mrs. Rappleyea, have agreed to sell all their interest in the estate to the widow, and she has agreed to purchase the same, at a fixed price, provided the defendant, as administrator, etc., will account and pay over to her, as the assignee of the other two plaintiffs, absolutely, all the balance of personal property remaining in its hands. This the defendant, as such administrator, declines to do before it shall have been judicially determined whether there is not an existing trust under the will which cannot be divested or extinguished during the life or widowhood of the plaintiff Mrs. Raymond, and it unites in the present submission to obtain the determination mentioned. The action of the defendant was prudent, and its contention here we believe to be well founded. The defendant, as successor or substitute for the executors named in the will, though not in terms denominated a trustee by the will, was yet manifestly charged with a trust in respect to the personal estate. Ward v. Ward, 105 N. Y. 68, 11 N. E. 373, and the cases cited; Marx v. McGlynn, 88 N. Y. 358--375. In this case the trust was not merely to invest the moneys of the estate, and collect the income thereof and pay it to the widow during the term limited by the will, but also, in their discretion, to apply such moneys for the benefit of the real estate, not only in the payment of taxes and assessments, but in the reduction of existing incumbrances thereon. These incidents certainly rendered the possession of the corpus of the estate by the executors "convenient and reasonably necessary," and, as was said in Ward v. Ward, supra, rendered them "trustees for the performance of their duties to the full extent, as though declared to be so by the most explicit language." a trust being created and devolved upon the person or persons finally charged with the execution of the will, it seems to be settled by authority, as well as consonant with the reason of the case, that |