This is an action to construe the will of the late Jean C. Bradley, deceased. She died testate, a resident of the State of Pennsylvania, where the plaintiff herein as her executor qualified, and is now acting executor under her will.
At the time of the death of Jean C. Bradley an action of ejectment was pending, in which she was plaintiff, for the recovery of certain property situated in the county of Nassau, which property became a part of her residuary estate. By the terms of her will the power of alienation was suspended for a period of twenty years, a provision which is valid in the State of Pennsylvania, but which conflicts with the provisions of the Real Property Law of the State of New York. (See Real Prop. Law, § 42.)
The purpose of this action is to determine in whose name the action of ejectment commenced by Jean C. Bradley during her lifetime may be revived and prosecuted. The will under discussion attempts to give to the executor and trustee the power of sale, not only of the property in the State of Pennsylvania, but of the residuary estate, of which the real estate in Nassau county forms a part.
The executor and trustee has assumed to exercise control over the real estate in question by paying the transfer tax due to the State of New York theréon, as well as water rates assessed by the city of Long Beach. And, even though the trust created in the will is invalid, the expenditures on behalf of the estate by the executor to the extent of expenditures made by him revive the power. The testatrix clearly intended to vest her residuary legatees and devisees. The suspension of the power of alienation for the purposes of this action should be deleted.
It follows that the action of ejectment, started with the decedent during her lifetime, should be revived by the executor and trustee, joining with him the residuary legatees named in the will.