The opinion
Barrett, J.:
I also agree to the affirmance of this judgment with much hesitation. If the language used by Andrews, J., in Vernon v. Vernon ( 53 N. Y., 351 ), be applicable to the terms of the present will, it is difficult to see why the executors did not take the legal title to-the realty. I am inclined to think, however, that that case is distinguishable from the present.
The effect there given to the provision for the payment of the annuity by the executors out of the rents was not to invalidate the will; it may be that the court deemed the will susceptible of two constructions, and adopted that which, without invalidatingv the will, seemed most in harmony with the testator’s intention.
There were, also', in the earlier part of the will, words expressive of a purpose to vest the legal title in the executors.
If we are in error in this view of the case, the court above can correct us. The other questions presented, too, are by no means free from difficulty; but upon the whole, I am inclined to concur in the conclusions arrived at by the presiding justice.
Brady, J., concurred.
Judgment affirmed, with costs of the appeal to all parties out of the fund.