In Re the Judicial Settlement of the Accounts of Collins

Finch, J. The appellant’s argument covers an area very much beyond the scope of the real questions involved in this appeal. Those are only whether the executor, ordered to account as such for the proceeds of real estate sold under a power of sale given by the will, should account also in the character of a testamentary trustee, and whether the accounting should include a sum of one thousand dollars which, by arrangement among three of the devisees, was used to produce an annuity of fifty dollars bequeathed to the widow. There is hardly room for argument over either question. The will creates no trust in the real estate, either directly or by impli *528 cation. Purely legal estates were devised, and those vesting at once in the devisees upon the death of the testator, and involving no duty beyond that which an executor is competent to perform. What is known as the Wooster street property, and the Yorkville house and lot, constituted the whole ot testator’s real estate. His personal property was all exhausted and has been fully accounted for. The widow was given the income of all the real estate until her re-marriage, which occurred within two years after testator’s death, and upon such second, marriage she was to have only an annuity of fifty dollars, and á life estate in the Yorkville property. All the residue was to be divided among the three children. Thereby the fee of the real estate was vested in them, incumbered only by the widow’s life estate and the charge of the annuity. In this disposition there is no trace of trust or trustee; nor the least need of either; and only the ordinary case of a devise of purely legal estates. The executor as such joined with the widow and devisees in a sale of the Yorkville property and has been ordered to account for the proceeds. Whether the power of sale was applicable to the situation, or the title transferred vested wholly upon the deed of the devisees, is a question not before us. . The executor took the proceeds in his representative character and has been ordered to account for them, which was entirely proper. (Hood v. Hood, 85 N. Y. 570.) What more could he asked or required it is difficult to see. The defendant sold the land and received the proceeds, either as agent for the owners or as executor under a power of sale, but never as a testamentary trustee dealing with a trust estate vested in him by the will. To insist upon treating his act as done in the latter character is not only without adequate reason but would confuse and complicate a very plain situation, and peril the admitted rights of the parties interested. The annuity of fifty dollars to the widow was probably a charge upon the Wooster street property which, after the widow’s marriage, belonged entirely to the three children. The personal estate was exhausted, the income of the York- *529 ville property belonged to the widow, and so the annuity became a charge upon the only remaining real estate in the hands of the children. They so regarded it. The will had directed them to make necessary provisions for its payment. The direction created no trust, set apart no trust fund, but left the executors free to provide for it out of the estate. The three devisees of the Wooster street property, to exonerate their land from the charge, contributed each one-third of one thousand dollars, and that sum was placed in the hands of William to obtain by investment the needed annuity. That fund was all the time the property of the three children and never belonged to or formed any part of the testator’s estate. It was held and managed by William as agent of the devisees, and its annual income alone was payable by him as such agent in discharge of the annuity. When, by the death of the widow, the annuity ended, the purpose of the fund was accomplished, and it reverted to the sons freed from the charge upon it. If William holds it still it is not in the character of executor or as part of testator’s estate. There was no error of which the appellant can complain and the judgment should be affirmed, with costs. All concur. Judgment affirmed.