GEORGE B. PATTISON, as Substituted Trustee of and under the Last Will and Testament of JAMES W. CUSACK, Deceased, Respondent,
KITTIE AKIN CUSACK, Individually and as Trustee of and under the Last Will and Testament of JAMES W. CUSACK, Deceased, Appellant, Impleaded with ELLA F. CUSACK, Respondent.
APPEAL by the defendant, Kittie Akin Cusack, individually and as trustee, etc., from part of an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 3d day of January, 1911, upon the decision of the court, rendered after a trial before the court without a jury at the Rensselaer Trial Term, directing a sale in an action for partition.
Shaw, Bailey & Murphy [H. D. Bailey of counsel], for the appellant Cusack.
Abbott H. Jones, for the appellant trustee.
Peck & Behan [John H. Peck of counsel], for the plaintiff, respondent.
John T. Norton, for the respondent Ella F. Cusack.
James W. Cusack owned the premises involved in this action. He died testate on April 10, 1898. His will, so far as is important here, was as follows:
'Fifth. I give, devise and bequeath one-third of all the rest, residue and remainder of my property, both real and personal, to my beloved wife Kittie Akin Cusack absolutely, which shall be received and accepted by her in lieu of all dower which she may have in the real property of which I may die seized.
'Sixth. I give, devise and bequeath all of the rest, residue and remainder of my property, both real and personal, to my executors hereinafter named in trust, however, to invest the same and pay over the income arising therefrom to my daughter Ella F. Cusack, during her lifetime and during the lifetime
of my said wife, and in case my said wife shall not survive my said daughter, then, and immediately upon my said wife's death, my said executors shall pay and turn over to my said daughter all of said rest and residue, together with the accumulations of interest then on hand; and in case my wife shall survive my said daughter, then, and immediately upon my said daughter's death, my said executors shall pay and turn over to my said wife all the rest and residue of my said property, together with the accumulations of interest then on hand. * * *
' Eighth. I nominate, constitute and appoint my friends John P. Townsend of New York City, N.Y. , and Charles Cleminshaw of the City of Troy, N.Y. , executors, and my said wife Kittie Akin Cusack, executrix, of this my last will and testament, empowering them to sell any or all of my real estate at such time or times as they shall deem it for the best interests of my estate and with the consent of my said wife and daughter.'
The executor John P. Townsend died some time subsequent to assuming his duties, and Charles Cleminshaw resigned in 1909, and the plaintiff was appointed as a substituted trustee in place and stead of said Charles Cleminshaw and qualified and entered upon the discharge of his duties.
The heirs at law and next of kin of James W. Cusack were Kittie Akin Cusack, his widow and second wife, and Ella F. Cusack, a daughter by his first wife.
The court has found in its findings of fact the rights, shares and interests of the parties in the real property described in the complaint as follows:
'VI. The rights, shares and interests of the plaintiff and the defendants in and to the real estate and property hereinbefore described and described in the complaint in this action are as follows, to wit:
'The said defendant, Kittie Akin Cusack, individually is seized in fee and entitled of and to an undivided one-third part of said real estate.
'The plaintiff and the defendant, Kittie Akin Cusack, as trustees as aforesaid, are seized of and vested with the legal estate, subject to the execution of the trust created in and by
the last will and testament of James W. Cusack, deceased, of, in and to an undivided two-thirds ...