¶1The testatrix, having been survived by her husband, Dr. Marshall 0. Terry, had not power to give or devise over one-half of her estate to benevolent and charitable institutions. (Decedent Estate Law [Consol. Laws, chap. 13; Laws of 1909, chap. 18], § 17.) Her atempted devise or bequest was valid “ to the extent of one-half, and no more.”
¶2For the purpose of this appeal we have these amounts:
¶3Total estate, less debts and expenses......... $2,556,208 16
¶4Amount (being half) available for charity.....$1,278,104 30
¶5Total bequests:
¶6To -the A. M. McGregor
¶7Home . . .....'..... $1,793,066 82
¶8To St. John’s Church. . 10,000 00
¶9To Free Kindergarten
¶10Assn.............. 5,000 00
¶11- 1,808,066 82
¶12Intestacy excess ........................ $529,962 52
¶13The will created (8th paragraph) a trust fund to the husband, Dr. Terry, for life, of $500,000, with remainder to the A. M. McGregor Home. In other legacies, not charitable, the will gave $325,000.
¶14The 19th clause of the will provided for paying legacies in .full in the ¡order in which they are set forth in the will, without any pro rata- abatement if the estate should be insufficient to pay all of them.
¶15*432The 21st clause authorized the executors and the trustees of the trust hereinbefore created “ to ' sell at public or private sale, for cash or credit, and to lease,” and gave a general power of disposition.
¶16For this appeal, however, the important provision 'is the 20th: “ I hereby authorize and empower my executors at their discretion, to retain • the property whether real or personal, constituting my estate, as the same shall be received by them at their discretion to distribute the same in kind to the persons who shall become entitled to any part thereof under the provisions of this my will, at valuations to be placed thereon by my said executors, and I direct that the valuations so. fixed shall be binding upon all persons interested under this my will.”
¶17The present plaintiffs are the nephews and nieces of deceased. They sue to partition land ón De Lancey avenue in Mamaroneck, Weschester county, in which they claim fractional interests. The answer denied title in plaintiffs, and also set up a lien in favor of the executors for the transfer tax that they had advanced. The court below rendered judgment dismissing the complaint upon the merits.
¶18The executors have power to allot any of deceased’s estate to those entitled under the will. It is a power created by devise in a will, which the executors may yet exercise so as to take the lands from the heirs. “ The heirs and next of kin of the testatrix derive their title under the law of descents and distribution, and their rights attached immediately on the death of the testatrix, to any part of the estate not validly disposed of by the will. If the power attempted to be created by the will was valid, their rights, whatever they were, were subject to it.” (Read v. Williams, 125 N. Y. 560, 570.)
¶19. The respondents rely upon Rich v. Tiffany (2 App. Div. 25), where executors had power over the corpus of the estate, and. Matter of Teed (59 Hun, 63), which held that such charitable gifts should not come wholly from personalty (p. 66). Appel*433lants cite Chamberlain, v. Chamberlain (43 N. Y. 424), where no .equitable conversion occurred, because the power to sell was discretionary and not absolute; also Matter of Clark (62 Hun, 275), where powers confided to executors nevertheless did not subject the real property to payment of charitable gifts.
¶20Hnder the clauses of the present will the lands, including that which is the subject of this action, are not yet so held by the heirs that, in their suit for partition, the court could authorize an indefeasible title to a purchaser.
¶21While it is settled that a mere testamentary power of sale would not take from the heirs the right to have partition (Hayden v. Sugden, 48 Misc. Rep. 108;' Wittel v. Wittel, 82 N. J. Eq. 229), nor would such a power of allotment to executors have this effect, if the allotment were to be only among those tenants in common who were joined as parties in the partition (Manley v. Manley, 61 Misc. Rep. 183) —: the present power of the executors to allot, or to sell, may be exercised so as to take away this, or any other real estate of decedent, and apply it so as to form the corpus of either fund, or to satisfy the large legacies of over $300,000.
¶22Before the executors’ unrestricted powers of allotment shall have been exercised, the heirs’ title remains defeasible. Therefore, this partition suit is premature.
¶23In view of the terms of paragraph 21, and the powers conferred on the executors to take and apply either realty or personalty, the court is not now called on to instruct or direct the executors in the discharge of this trust. In order to leave the will in full force, and not to restrict the executors’ powers under it, we deem it better to rescind and reverse the conclusions of law numbered fifth and eleventh, both in the decision and in the judgment, but to confirm the findings of fact, and the other conclusions of law by the court at Special Term.
¶24The judgment is, therefore, affirmed, with costs to the respondents Terry and Hall, individually and as executors, pay*434able out of the estate. The conclusions of law numbered fifth and eleventh are, however, rescinded and reversed.
¶25Jenks, P. J., Thomas, Carr, Rich and Putnam, JJ., concurred.
¶26Judgment affirmed, with costs to the respondents Terry and Hall, individually and as executors, payable out of the estate. The conclusions of law numbered fifth and eleventh are, however, rescinded and reversed.