In the Matter of the Probate of the Last Will and Testament and Codicil of Lipman Arensberg, Deceased. Milton L. Arensberg, Appellant; Myer Arensberg and Others, Respondents

In the Matter of the Probate of the Last Will and Testament and Codicil of Lipman Arensberg, Deceased. Milton L. Arensberg, Appellant; Myer Arensberg and Others, Respondents. Second Department, June 7, 1907. Will — accumulations during minority—operation of residuary clause when minor becomes of age béfore death of testator — title of executors under discretionary power of sale—burden to sustain disinheritance. Where a will creates a trust during the minority or life of testator’s son and by, a subsequent clause provides for the division of the estate among testator’s children per stirpes on the termination of the trust, said trust becomes inoperative if the son attains his majority during the life of the testator and the subsequent clause does not fail with the trust, but takes effect immediately. Although executors are given discretionary power of sale they are not vested with the legal title and the'power is not inconsistent with the passing of the estate under the residuary clause. When a testator expressly states that he disinherits a son because he has been undutiful, the proponents of the will are under no burden to account for the disinheritance, unless there has been fraud, deceit or undue influence so that the disinheritance was not in fact the act of the testator. Appeal by the contestant, Milton L. Arensberg, an heir at law of Lipman Arensberg, deceased, from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 7th day of December, 1906, admitting tó probate the last will and testament of Lipman Arensberg, deceased. The will devised the residue of the testator’s property, real and personal, to his executors in trust.to hold during the minority of a son' or until his death, and to pay a portion of the income to a daughter and apply the balance to satisfy the decedent’s debts, including mortgages. On the termination of the trust the executors were directed to divide the estate into as many parts as the testator had children and to pay over to said children or the issue of those deceased. By a codicil the testator disinherited a son who contested the probate on the ground that the trust was void as creating an unlawful accumulation. Andrew F. Murray [August. C. Hanz with him on the brief], for the appellant. Jacob Brenner, for the respondents. [MAJORITY — Jenks, J.:] Jenks, J.: I think 'that the main, intent of the testator was to divide his estate equally among his children and the issue of any predeceased child per stirpes. The trusts' provided for during the minority of his child Sydney were plainly created because'of his minority and . were but incidental ■ to the division, which was only. postponed because the second trust required it. As Sydney attained’ his majority during the life of the testator the provisions for the trusts became inoperative and the main disposition by the - residuary clause became at once operative. For that disposition could not fail unless it was só related to the trust that the failure of the latter necessarily involved its failure as well. (McLean v. Freeman, 70 N. Y. 81; Wager v. Wager, 96 id. 164, 171; Hughes v. Mackin, 16 App. Div. 291.) I think that it is clear that the estate necessary to the existence of the trust must be. regarded as but a preceding limitation and not as a preceding condition. (Williams v. Jones, 166 N. Y. 522, and authorities cited.) The expression of the residuary clause is sufficient to convey the estate. (Roosa v. Harrington, 171 N. Y. 341, 350; Matter of Brown, 154 id. 313.) . The words “ uppn the termination of the trust ” can'have no meaning or effect attributed to them, as the trust had no existence. (Weeks v. Cornwell, 104 N. Y. 325, 340.) The discretionary power of sale in the executors did-, not'vest them with the’legal title, and it is not inconsistent with the passing of the estate under the residuary clause. (Rea] Prop. Law [Laws of 1896, chap. 547], § 77; Fowler Real Prop. Law [2d ed.], 389, and cases cited; Hughes v. Mackin, supra.) So far as the disinheritance of the contestant is concerned, provided that act was plainly accomplished by a valid will, we cannot interfere with it. (Matter of Mondorf, 110 N. Y. 450.) The testator in his codicil excluded one child by name upon the express ground that- he had been undutiful. That exclusion, even if unaccounted-for, .would present no ground for a contest unless marked by fraud, deceit or unfair influence, so that the act of disinheritance was really that of another and not of the testator. (Ross v. Gleason, 26 N. Y. St. Repr. 501; 116 N. Y. 664.) The decree is affirmed, with costs. Woodward, Hooker, Gaynor and Eich, JJ., concurred. Decree of the Surrogate’s Court of Kings "county affirmed, with costs.