I do not think that it was the intention of the testatrix that .thb real estate that she had devised to her brother should be included in, the share that she directed her executors to invest for his benefit. Just what the testatrix intended is not at all clear. There is nothing to show that she intended to give to her brother, John - B. Mee,, an estate for life in her real property, with remainder over to his wife and issue. There is no evidence as to how much, if any, personal property the testatrix had when she died. She evidently had some idea of creating a trust-of .some kind in favor of her brother,, and the words used would be proper if applied to personal property, but they are most .inappropriate if applied to real estate,, especially where no power of sale is given to the executors. This conclusion, I think, is justified by the case of Banzer v. Banzer (156 N. Y. 429). See, also, Goodwin v. Coddington (154 N. Y. 283), where Judge O’Brien says : “ Whenever the will begins with an. absolute gift, in order to cut it down, the latter part of the will must show as clear an intention in that direction as the prior part does to make it.”
: I agree, therefore, that the judgment be reversed and the complaint dismissed.
Judgment reversed and complaint dismissed on the'merits, with costs in this court and in the court below.