First Department, November, 1907.

[Vol. 122. quence of their having failed to give the security for costs required by the order of August, 1906. That order required the plaintiffs either to deposit the sum of $250 to be applied to the payment of the costs, if any, awarded against them, or, at their election, file with the clerk of the county of New York an undertaking to the defendant, with two sureties, to the effect that they would pay upon demand to the defendant all costs which might be awarded to him in the action, not exceeding $500. No such undertaking has been filed. No motion was made to vacate or modify this order. The plaintiffs filed an undertaking for $250 which was served upon the defendant, but that was not a compliance with the order of the court, and the stay was not thereby vacated. The fact that the defendant did not return the undertaking as not a compliance with the order did not waive or vacate the stay. The order was not void. It stayed the plaintiffs' proceedings until such undertaking should be filed and served; and the plaintiffs were not authorized to comply with the order of the court so far as it pleased them and disregard its other provisions and then claim, because the defendant had simply rested upon the order, its provisions were waived.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, with leave to renew the application for a commission upon written interrogatories when the order requiring security for costs is complied with.

PATTERSON, P. J., MCLAUGHLIN, HOUGHTON and Scorr, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, with leave to renew as stated in opinion. Settle order on notice.

App. Div.]

First Department, November, 1907.

In the Matter of the Application of MARTIN LOUIS UNGRICH for the Payment of Certain Moneys under the Trust Created by the Will of HENRY UNGRICH, Deceased.

MARTIN L. UNGRICH, Respondent, v. HENRY UNGRICH, JR., and MARTIN UNGRICH, as Executors of and Trustees under the Last Will and Testament of HENRY UNGRICH, Deceased, Appellants.

First Department, November 22, 1907.

Trust-order that trustees pay income pendente lite - unauthorized provisions.

Assuming that a beneficiary suing trustees for an accounting to rescind convey ances of the trust property and to remove the trustees may be entitled to a summary order requiring the trustees to pay him income from the trust estate pending the litigation, the order should not embody a provision that the pay. ment shall be "without prejudice to the rights of any of the parties in this action."

SCOTT, J., dissented.

APPEAL by the defendants, Henry Ungrich, Jr., and another, as executors, etc., from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of June, 1907, as directs that they forthwith pay to the respondent, Martin L. Ungrich, the sum of $2,919.20, "without prejudice to the rights of any of the parties in this action."

Edward W. S. Johnston, for the appellants.

L. Laflin Kellogg, for the respondent.

INGRAHAM, J.:

This action is brought to compel the defendants to account for certain property received by them as trustees; to set aside certain unlawful and illegal conveyances of the trust property; to impress a trust upon the proceeds; to remove the defendants as executors and trustees under the will of the testator and for other and further relief. The answer, which is very voluminous, set up several defenses and counterclaims to which the plaintiff replied. Upon the pleadings and upon an affidavit the plaintiff made a motion to require APP. DIV.-VOL. CXXII. 4

First Department, November, 1907.

[Vol. 122. the trustees to pay to him a certain sum of money as the income of the trust estate "without prejudice to the rights of any of the parties in this action." In answer to this application the trustees presented an affidavit stating that there were certain sums of money invested on bond and mortgage for the benefit of the plaintiff under the will of the testator; that up to the time of bringing the action the income from these investments had been paid to the plaintiff; that the trustees sent to the plaintiff a certified check to his order for the sum of $2,919.20, which is more than the amount claimed by the plaintiff and which is the full amount due to him as income under said trust estate, but objected to any provision in the order requiring the payment of this amount without prejudice to the plaintiff's right in the action.

It is not clear that the Special Term had power to require the defendants to make this payment by a summary order before the case had been tried if it had been objected to. If, however, the plaintiff wished to receive this accruing income he had no right to impose conditions upon which it should be paid to him. If he was entitled to this income he was entitled to receive it, but if he required the trustees to pay it to him pending the litigation he must take it subject to such legal consequences as would flow therefrom, and the court was not justified on a summary application to compel the trustees to pay him and at the same time direct that there should not result from the payment the necessary legal consequences, whatever they were. The plaintiff can refuse to accept any payment from the trustees pending the trial of the action, but no reason is disclosed why the trustees should be compelled to pay him and at the same time not have the benefit of such payments.

The order appealed from should be modified by striking out of the order the words " without prejudice to the rights of any of the parties in this action," with ten dollars costs and disbursements of this appeal to the appellants to abide the final judgment in the action.

PATTERSON, P. J., MCLAUGHLIN and LOUGHTON, JJ., concurred; SCOTT, J., dissented.

Order modified as directed in opinion and as modified affirmed, with ten dollars costs and disbursements to appellants to abide event.

App. Div.]

First Department, November, 1907.

VAN NORDEN TRUST COMPANY, as Executor of and Trustee under the Last Will and Testament of HENRY A. SMITH, Deceased, Respondent, v. JOHN J. O'DONOHUE and Others, Appellants, Impleaded with EDWARD F. MURPHY and Others, Defendants. First Department, November 22, 1907.

will construed-devise not creating trust - equitable conversion election.

Action for partition.

A testator left to his sister the net annual income of his entire estate, real and personal, after the payment of an annuity to his brother H. There was no clause vesting the executors with the estate for the purpose of paying the income to the sister for life, but it was provided that they were to take charge of the whole estate during her lifetime. It was also provided that the executors should continue to pay the annuity to H. if he survived the sister, and that a sum might be invested for that purpose to become part of the residuary estate on the death of the annuitant, but the latter died before the sister. The exec. utors were authorized to sell the whole or any part of the estate in their discretion, except certain lands the subject of the action for partition, which were not to be sold during the lifetime of the sister. On her death the remainder was devised to certain persons named, with a power of sale in the executors for the purpose of making the division among the remaindermen.

Held, that the will did not create an express trust and that title did not vest in the executors;

That on the death of the life tenant the remaindermen acquired a right to possession subject to the discretionary power of sale in the executors; That the remaindermen were entitled to convey their interests, subject to the contingencies provided in the will, prior to the death of the life tenant, and on the happening of that event the grantee had an immediate right to possession subject to the right of the executors to sell the lands for the purpose of distributing the proceeds, and one acquiring title through such grantee was entitled to partition;

That even though the power of sale in the executors worked an equitable conversion of the realty, the remaindermen were entitled to elect to take the lands rather than the proceeds thereof and upon such election, evinced by a conveyance of their remainders, the power of sale became useless;

That such right of election obtained although exercised only as to a portion of the estate;

That a lease of the premises by the executors was good only during the life of the life tenant and the fact that the lessee is in possession after her death does not establish that the remaindermen are not in possession for the purposes of partition.

APPEAL by the defendants, John J. O'Donohue and others, from an interlocutory judgment of the Supreme Court in favor of the

First Department, November, 1907.

[Vol. 122. plaintiff, entered in the office of the clerk of the county of New York on the 20th day of March, 1907, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the said defendants' demurrer to the second amended complaint herein.

H. Aplington, for the appellants.

Edward W. S. Johnston, for the respondent.

LAMBERT, J.:

The principal question involved in this appeal relates to the construction of the will of one Hugh Smith, who died on the 16th day of July, 1890, leaving a last will and testament, bearing date of April 10, 1884, the same having been duly probated in August, 1890. The deceased at the time of his death was the owner of the Murray Hill Hotel and property at Avenue "B," and this action for partition relates solely to these properties. The defendants John J. O'Donohue, Mary L. Kelly and Thomas J. O'Donohue, Jr., oppose the partitioning of the property, the various questions being raised by demurrer to the complaint, on the ground that it does not state facts sufficient to constitute a cause of action. The theory of the demurring defendants is that under the will of Hugh Smith, deceased, this property vested in trustees, and that the complaint does not show that the trustees were ever divested of title, or that the plaintiffs and defendants are in possession of the premises in such a manner as to permit of this action. The whole argument proceeds upon the theory that there is a trust under the will, although the defendants do not, apparently, concede that the facts would constitute a cause of action under any circumstances. The will is complicated in its arrangement, and it does contain some elements of a trust nature, but we are of the opinion that it is lacking in some of the essential elements of an express trust, and that it did not vest title in the executors under the will of Hugh Smith.

Hugh Smith left him surviving his sisters, Margaret C. Smyth and Catherine T. Smith, his brother, Henry A. Smith, the plaintiff's testator, John H. Murphy and Edward F. Murphy, his nephews, and Jane T. Dillon and Louisa A. O'Donohue, his nieces, as his only heirs at law. By his will the testator gave to his sister Cathe