In re the Judicial Settlement of the Account of Proceedings of Callister

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.]