Opinion of the Court, per HAIGHT, J. [Vol. 196. of adjoining owners. The evidence tends to show that Stern when he purchased it in 1901 paid $4,000.00 for it, and a number of experts gave its present value to be $5,000.00, while on behalf of the petitioner, Mrs. Reese, it is claimed that its present value is the amount retained by Corn, $36,000.00. It is contended that Stern and Corn are the parties chiefly interested in this litigation, and that one of them instigated or procured Mrs. Reese to institute these proceedings. But we do not consider the differences between Stern and Corn, as now before us, for determination, and we shall, therefore, limit our review of the case to the determination of the legal questions raised by the order vacating the appointment of Berrien as trustee. This order we regard as a final order in a special proceeding, and, therefore, it may be appealed from to this court. In the first place it is not clear to us that Mrs. Reese should be permitted to be heard upon the question of the validity of the order appointing Berrien as trustee. For, as we have seen, he was appointed upon her own petition and her own motion. It is true that if she had been deceived by false and fraudulent statements and was improperly induced to make the petition for the appointment of Berrien, then she had the right to petition the court for relief. But, as we have seen, the court has found that she was not deceived by any false statements or fraudulent representations, that she knew all of the facts, and, so knowing the facts, she had executed a deed conveying away her entire interest in the premises. With the charges of fraud disposed of, we would naturally suppose that the Special Term would have dismissed her application, but the court saw fit to vacate the order appointing Berrien, for the reason that the court appointing him was without jurisdiction. We are thus brought to a consideration of that question. As we have seen, the will gave to the executrix and executors not only the power to sell and convey the real estate at public or private sale, but the testator specifically directed such executrix and executors to convert two-fifths of N. Y. Rep.] Opinion of the Court, per HAIGHT, J. the residuary estate into cash as soon as they could conveniently do so without loss, and to invest and keep the same invested upon bond and mortgage. This was an imperative power to sell, thus equitably converting the real estate designed for the trust into personalty, as of the date of the testator's death. (Doane v. Mercantile Trust Co., 160 N. Y. 494, and authorities there cited.) The trust estate must, therefore, be regarded as personal property and treated as such. Section 8 of the Personal Property Law (L. 1897, ch. 417) provides that "On the death of a surviving trustee of an express trust, the trust estate does not pass to his next of kin or personal representatives, but, if the trust be unexecuted, it vests in the Supreme Court and shall be executed by some person appointed by the court, whom the court may invest with all or any of the power and duties of the original trustee. The beneficiary of the trust shall have such notice as the court may direct of the application for the appointment of such person." In this case, as we have seen, all of the executors and trustees had died. No person was left to execute the trust. It, therefore, under the express provisions of the statute, vested in the Supreme Court who was authorized to execute it by the appointing of some person. The appointment was made upon the joint petition of the life tenants. The remaindermen were their children. They were to have such notice as the court should direct. The court in the exercise of its discretion did not require notice to be given to the remaindermen, but made the appointment upon the petition. of the life tenants. In the Real Property Law the provision is different. The estate vests in the Supreme Court, the same as does the trust estate of personal property, and shall be executed by some person appointed for that purpose under the direction of the court. But the statute then provides that no person shall be appointed to execute the trust until the beneficiary thereof shall have been brought into court by such notice in such manner as the court may direct. It will be observed that in the case of real property the beneficiary must be brought into court by such notice as the court shall Opinion of the Court, per HAIGHT, J. [Vol. 196. direct. The bringing of the beneficiary into court is not made a condition precedent to the power to appoint under the Personal Property Law, and consequently the court may appoint upon such notice as it may under the circumstances require. Suppose the remaindermen consisted of small chi!dren, or of persons who resided in foreign lands and their place of abode was unknown, and the court in the exercise of a sound discretion should dispense with the service of notice upon them and proceed to execute the trust at the instance of the life tenants? Would the action of the court be without jurisdiction? I think not. It appears to me that the design of the statute was to give the court that power. It may be better practice to have notice given to the remaindermen of the appointment of a trustee, and possibly notice to them should not be dispensed with except under extraordinary circumstances. In this case only one of the remaindermen is before the court. The rest have had no notice of this appli cation, and we are not now called upon to determine their rights. They may not seek the removal of the trustee. They may conclude to confirm the proceedings taken by their parents to have Berrien appointed trustee and to execute the trust. They may conclude, in view of the fact that the trustees had received $21,000.00 for this property, and that the petitioners had been in possession for upwards of forty years, and that at present the property is inaccessible and uncertain in value, that it is wise to accept the amount paid therefor by Stern to their parents and to the trustee. We, therefore, incline to the view that the Special Term erred in holding that the court had no jurisdiction to appoint a trustee of the estate. The motion to dismiss the appeal should be denied, and the orders of the Appellate Division and Special Term should be reversed, and the application of Mrs. Emily C. Reese denied, with costs in all the courts. CULLEN, Ch. J., EDWARD T. BARTLETT, VANN, WILLARD BARTLETT, HISCOCK and CHASE, JJ., concur. Ordered accordingly. JAMES J. HOULIHAN, Respondent, v. THE PREFERRED ACCIDENT INSURANCE COMPANY OF NEW YORK, Appellant. Insurance (accident) — policy must be construed according to plain and ordinary meaning of its terms-insurance against injury "if caused by burning of building." When a person takes out a policy of accident insurance he cannot reasonably expect indemnity outside the limitation of his contract; and when that contract expressly specifies the kind of accident which it covers, the rights of the insured and the liability of the insurer are measured by the specification. Where there is no ambiguity there is no occasion for the exercise of choice of interpretation; and the insurance policy is to be construed according to the plain and ordinary meaning of the terms which the parties have employed. A policy of insurance was issued by defendant to plaintiff in which plaintiff's sister was named as beneficiary. It insured the beneficiary against the effect of external, violent and accidental injury "if caused by the burning of a building while the said person is therein." The person named as beneficiary was burned to death while alone in her room; the cause or origin of the fire is unknown. Her outcries gave the alarm to the other occupants of the house, and when they reached her the clothing which she wore was almost burned off her and the bed clothes and bedding on her bed were in flames. A quantity of her clothing which hung on the door was also consumed, but the fire was speedily extinguished. The door is described as having been scorched but no portion of the building was burned. Held, that the burning of a building is not the same thing as the burning of articles in a building, and that, under the language of the policy, plaintiff is not entitled to recover. Houlihan v. Preferred Accident Ins. Co., 127 App. Div. 630, reversed. (Argued October 15, 1909; decided November 9, 1909.) APPEAL from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 10, 1908, reversing a judgment in favor of defendant entered. upon a verdict directed by the court and granting a new trial. The nature of the action and the facts, so far as material, are stated in the opinion. William D. Guthrie, Talmadge W. Foster and Francis S. Bangs for appellant. The rule that where an insurance com Opinion of the Court, per WILLARD BARTLett, J. [Vol. 196. pany frames a policy in language which is ambiguous, or which requires interpretation, or which is reasonably susceptible of different meanings, the uncertainty should be resolved contra proferentem, is most inapplicable where the policy defines a specific risk in plain and popular language clearly indicating and disclosing a distinct and definite understanding as to the risk assumed and paid for and employing appropriate language not capable of misleading the simplest mind. (Preston v. E. Ins. Co., 193 N. Y. 142; Nelson v. T. Ins. Co., 181 N. Y. 472; Peabody v. Satterlee, 166 N. Y. 174; Allen v. G. A. Ins. Co., 123 N. Y. 6; Foot v. E. Ins. Co., 61 N. Y. 571.) The language of the clause in question "if caused by the burning of a building" is quite plain and unambiguous, and there should be no reasonable doubt as to the intention of the parties. (The Glenlivet, L. R. [C. P. 1894] 48.) Howard Chipp, Edward D. Bryde and Charles W. Dayton, Jr., for respondent. This is a policy of accident insurance and mast be construed liberally in favor of the insured. (Vance on Ins. 565; Rickerson v. H. F. Ins. Co., 149 N. Y. 307; Herman v. M. Ins. Co., 81 N. Y. 184; Hoffman v. E. F. Ins. Co., 32 N. Y. 405; Martin v. E. A. Assn., 61 Hun, 467; Matthews v. A. C. Ins. Co., 154 N. Y. 449; Marshall v. C. T. Assn., 170 N. Y. 434; Northrup v. R. P. Assur. Co., 43 N. Y. 516.) Even upon the defendant's construction of the policy there was a question of fact for the jury, and plaintiff's exception to the direction of a verdict for defendant was well taken and amply justified the Appellate Division in reversing. (McDonald v. M. R. R. Co., 167 N. Y. 66; Richards on Ins. § 45; Kenyon v. K. T., etc., Assn., 122 N. Y. 247.) WILLARD BARTLETT, J. This is an action upon a policy of accident insurance. The policy was issued by the defendant corporation to the plaintiff, and the plaintiff's sister, Mrs. J. B. Manning, was named therein as beneficiary. It insured the |