I regard Mellen v. Mellen, 139 N. Y. 210, 34 N. E. 925; Anderson v. Anderson, 112 N. Y. 104, 19 N. E. 427,—as conceding, it may be, rather than deciding, that an action of this character can be maintained under, section 1866, Code. I find that the testator conveyed the Clarenceville property, in his lifetime, to his present widow, Katharina Rausch, and hence hold that it is not necessary to determine or construe the provisions of the will regarding such property. I find the proper construction of said will to be as follows: By the first clause the testator gives the defendant an estate during her widowhood. If she dies his widow, then the plaintiff will take the estate as heir at law, as the remainder upon such estate is undisposed of by the will. That, by the second clause of the will, on the remarriage- of the widow the testator’s estate will vest in fee in the widow one-half, the plaintiff onequarter, and the *788plaintiff’s children, Bernhard and Virginia, one-quarter. That the fourth clause of the will creates no suspension of the power of alienation. That on the remarriage of the widow no trusts are created, but the legal title vests in the four devisees, apart from the question of lives. 2 Jarm. Wills, 14; Oxley v. Lane, 35 N. Y. 340; Lovett v. Gillender, Id. 617. This clause is therefore void. Judgment in accordance with this opinion, without costs to either party, as I see no funds out of which the costs could be paid.