
    The New York Life Insurance & Trust Co., Trustee, Resp’t, v. John Henry Livingston et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed April 12, 1892.)
    
    Trust—Power oe appointment.
    Clermont L. De Peyster conveyed his property to plaintiff as trustee to lease the real estate and keep invested the personalty, and pay over the income to him, and upon his death to make over the balance to such persons, and in such shares, as should be appointed by him by his last will and testament. By his will he gave and bequeathed to defendant ‘ all the rest, residue and remainder of my estate, both real and personal property, of what nature and kind soever and wherever situate, which I may own or be in any manner entitled to at the time of my death,” Held, that this was a good execution of the power of appointment
    Appeal from judgment of the supreme court, general term, first department, affirming judgment in favor of plaintiff.
    
      George W. Ellis, for app’lts; Henry B. Beekman, for resp’t.
    
      
       Affirming 39 St. Rep., 159.
    
   Andrews, J.

The will of Clermont" L. DePeyster, after giving a single legacy, provides as follows: “ I give and bequeath to my uncle John Henry Livingston all the rest, residue and remainder of my estate, both real and personal property, of what nature and kind soever and wherever situate, which I may own or be in any manner entitled to at the time of "my death.” This was a good execution of the power of appointment contained in the prior trust deed of July 11, 1887.

By § 126 of the statute of powers it is enacted that “ The lands embraced in a power to devise shall pass by a will purporting to convey all the real property of the testator, unless the intent that the will shall not operate as an execution of the power shall appear expressly or by necessary implication.”

By analogy the same rule of construction applies to wills of personal property. Cutting v. Cutting, 86 N. Y., 522; Hutton v. Benkard, 92 id., 295.

There is no intent expressed in the will that it shall not operate as an execution of the power, nor does such intent appear by “ necessary implication.” The testator owned the property embraced in the trust prior and up to the time the deed was executed. He reserved therein the beneficent interest during his life and a "power of appointment by will. This was little less than ownership, and the statute for the purpose of construing a disposition by will under a power of appointment treats the subject of the power as the property of the donor of the power, and conclusively infers an intention in a testator to execute the power where the will disposes of all his property and the inference is not rebutted by express language or necessary implication.

The will in question disposed of all the testator’s property, real and personal, by the legacy and gift of all the residue. The argument that as Livingston was the heir at law of the testator, and as such would have taken all the real estate embraced in the trust deed, under the limitations therein, if there had been no will, and that it cannot be supposed that the testator intended by a will made within a month after the execution of the deed to change the title which would accrue to him thereunder into a title as devisee, or to deprive his next of kin of the benefit of the deed, is entitled to no weight under the statute. It is matter of argument merely. There is no “ necessary implication ” resulting from the language of the will or the circumstances that it was not intended to operate upon the property embraced in the power.

Nor is there anything in the fact that the gift in the will was a “ residue ” after payment of the legacy.

There was nothing in the nature of the prior dispositions, in terms or by construction, which limited the residue to property of which the testator was the absolute owner.

The conclusion of the court below should be affirmed.

Judgment affirmed, with costs.

All concur.  