APPEAL by the defendants, Cornelia C. Robinson and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 20th day of May, 1911, upon the decision of the court rendered after a trial at the Westchester Special Term.
Vincent P. Donihee [Edward S. Hatch and Walter F. Welch with him on the brief], for the appellants.
Charles I. McBurney, for the respondent.
This is an appeal from a judgment foreclosing a mortgage on certain real estate in the village of Tarrytown and directing a sale of the property. The mortgaged premises consist of four parcels, designated respectively as (1) the stone yard, (2) the point dock, (3) the lumber and coal yard, and (4) the Tripp lot. The mortgagors' interest, if any, in this real estate was acquired from one Simon Shindler, who died seized in fee in 1883, leaving a last will and testament which was duly admitted to probate the same year. By the 4th article of the will the testator devised the lumber and coal yard and the Tripp lot to his executors, to hold in trust during the lives of his daughter, Cornelia Caroline Shindler (now Robinson), and his son, Samuel W. Shindler, and to pay the income to said Caroline C. Robinson during her life. The provision for Samuel W. Shindler is immaterial, as he predeceased his sister. The will makes the following provision for the disposition of the trust estate after the death of Cornelia C. Robinson, who is still living: 'And upon the further trust on the death of my said daughter Cornelia Caroline * * * to convey the property in this article of my will mentioned to Simon W. Sencerbox,
James W. Danforth, Cornelia Jacobina Robinson and Clarence R. Robinson, the children of my said daughter Cornelia Caroline, or such of them and such other children as she may leave her surviving at the time of her death in fee simple absolute in equal portions.' Then follows a power of sale to the executors during the term of the life estate, with provisions amounting to a direction to hold the proceeds upon the same trust as that under which the realty was to be held.
By the 6th article of the will the point dock property was devised in trust to the executors to pay the income to the testator's daughter, Cornelia C. Robinson, during her lifetime and upon her death the corpus of the trust estate was to be disposed of in the same manner as the corpus of the trust estate created by the 4th article.
By the 5th article the testator directed the executor to sell the stone yard property, and to apply the proceeds of such sale to the payment of any mortgage on the property devised in trust by the 4th article of the will. There was a mortgage of $5,000 on that trust property. The stone yard property has never been sold, and the mortgage on the trust estate has never been satisfied.
By the 7th article of the will the testator gave another son, James Shindler, 'all the rest and residue' of his estate, 'real and personal and effects whatever of whatever description and wherever situated not hereinabove otherwise devised, bequeathed or appropriated.'
On the 27th day of March, 1893, Cornelia C. Robinson, the life beneficiary of said trust estates, and the remaindermen executed the mortgage in question upon the trust real estate and the stone yard property to James Shindler.
On the 5th day of April, 1893, James Shindler and his wife, the plaintiff herein, executed a deed to Cornelia C. Robinson and the remaindermen. By this deed James Shindler granted and released unto them so much of the real estate heretofore referred to as vested in him under and by virtue of the residuary clause of the will. The habendum clause provided that Cornelia C. Robinson was to have and to hold the premises for and during ...