The following is the opinion of the surrogate:
William A. Sawyer, SurrogateIt seems very clear to me that the testator did not intend to give to his daughter Frances any sum in addition to the $250 agreed to be paid by him by the agreement in writing dated September 30, 1909. By the 2d clause of the will he limits the entire sum to be paid to $250 a month during her lifetime. Said clause of the will reads as follows:
" Second,. To my sister Ellen, I give the sum of one hundred ($100) dollars per month during her life, this to be in lieu of all claims against my estate, and to my daughter Frances A. McOahill the sum of two hundred and fifty ($250) dollars per month during her natural life as agreed upon in a separate contract executed by me. Both the above payments of one hundred ($100) dollars and two hundred and fifty ($250) dollars per month to be paid out of the rents of the Third Avenue Theatre.”
The word's “ as agreed upon in a separate contract executed by me ” were used by the testator for the express purpose of limiting the entire amount to be paid to the sum of $250 a month during her lifetime.
The attorney for the executor claims there is no trust created under the will of the testator and that Thomas J. McOahill, Jr., has a fee absolute in the property devised. His contention would probably be correct if there was a power of disposition under the will for the benefit of Thomas J. McOahill, Jr.
*17While he may sell, he cannot sell for his own benefit; he must sell for the benefit of his son. See 3d and 6th clauses of the will. There is no power of disposition.
Under the 6th clause of the will the testator uses the following language: " At the death of my son, I give, devise and
bequeath to my grandson, Thomas J. McCahill ‘ Tertius ’ all my real and personal estate mentioned in this my Will when he reaches the age of twenty-one (21) years.”
Clearly the testator intended his son to have a life estate with the remainder over to the grandson Thomas J. McCahill “ Tertius,” the said life estate to be charged with the annuities mentioned in the 2d clause of the will and bequest mentioned in the 4th clause of the will.
As the son is entitled to the possession of the real estate and also the rents and profits he makes' a life estate by virtue of the statute and there is no trust created under the will.
Section 92 of the Real Property Law (Consol. Laws, chap. 50; Laws of 1909, chap. 52) reads as follows: “Every person, who, by virtue of any grant, assignment or devise, is entitled both to the actual possession of real property, and to the receipt of the rents and profits thereof, in law or equity, shall be deemed, to have a legal estate therein, of the same quality and duration, and subject to the same conditions, as his beneficial intérest; but this section does not divest the estate of the trustee in any trust existing on the first day of January, eighteen hundred and thirty, where the title of such trustee is not merely nominal, but is connected with some power of actual disposition or management in relation to the real property which is the subject of the trust.” (See also, Rose v. Hatch, 125 N. Y. 427.)
It may be that the son may die before the grandson reaches the age.of twenty-one years; if so, the income accumulated up to that time would pass to the grandson, the residuary devisee and legatee. (Cochrane v. Schell, 140 N. Y. 516.)