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In the Matter of the Judicial Settlement of the Account of Proceedings of William L. Callister and John T. Callister, as Executors, etc., of Thomas Callister, Late of Queens County, New York, William L. Callister and John T. Callister, as Executors, etc., of Thomas Callister, Appellants Margrethe Callister, Individually and as and Sole Legatee and under the Last Will and Testament of Herbert J. Callister, Late of Brooklyn, Kings County, New York, and William L. Callister and Jane A. E. Flockhart, as Committee of the Person and Estate of Estelle M. Callister, an Incompetent, Walter J. Sharkey, Special Guardian for Estelle M. Callister, an Incompetent Person
Appeal by the executors from a decree of the Surrogate’s Court of Queens county construing the last will and testament of Thomas Callister, deceased.
The decree of November 12, 1935, is reversed on the law, with costs, payable out of the estate, to all parties filing briefs, and the matter remitted to the Surrogate’s Court for the entry of a decree adjudging that the fifth and sixth paragraphs of the will of the decedent do not create a valid trust and that an equitable conversion was not thereby created (Cooke v. Platt, 98 N. Y. 35.) Morse v. Morse (85 N. Y. 53) is not to the contrary. In that case there was a mandatory power of sale.
Lazansky, P. J., Hagarty, Carswell, Johnston and Taylor, JJ., concur. [157 Misc. 112.]