
    The Metropolitan Trust Co., as Testamentary Trustee, Plaintiff, v. Harriet H. Seaver et al., Defendants.
    (Supreme Court, New York Special Term,
    June, 1896.)
    Will — Power of appointment.
    A testator directed that the rents,' issues, profits and proceeds of his entire estate be applied by his executors to the use of his wife during her life, except that from such income the sum of. $1,200 per annum be applied during his wife’s life to the use of his brother. It . was further directed that upon the death of the wife the sum of $50,000 be set apart, and the income thereof applied to the use of said brother during his life; and the power to dispose of such principal sum by last will and testament was conferred upon the brother. The brother died before the testator’s wife, having, however, exercised such power of disposition as to said sum of $50,000 by bequeathing the .same to his children. Held, that during the life of the original testator’s wife the $1,200 per annum out of the general income of the .es- . -tate,' wfhich would have been applied to the use of the brother had he ■survived, should be applied to the use of his (the brother’s) children, and that the brother’s bequest of the $50,000 of principal to his . children would become- operative upon the death of said wife.
    Action fo-r construction of will.
    ■ Thomas. G-. Hillhouse, for plaintiff.
    Q-. A. Clement, for defendants.
   .-Beaoh, J.

The action is brought to obtain a judicial construction of certain portions of the last will of William A. Seaver, who died in January, 1883, leaving him surviving, among others) his widow and a brother, David Seaver. ■ ■

The parts of the will whereunder doubtful questions now arise are in words following: .

“ Fourth. It is my will and I direct my executors to apply the rents, issues, profits and .proceeds of my entire estate to the use of my wife, hereinbefore named, during her natural life, excepting, however, from such issues, profits and' proceeds the sum of twelve hundred dollars per annum, which I direct my éxécutors tq apply to the use of my brother, David Seaver, during each year of the life of my wife, and no longer.
“ Fifth.' Upon the death of my wife, it is my will that the said residue of. my estate, including the library mentioned, shall be divided and appropriated by my executors as follows: I direct them to apply to the use of my brother, David Seaver, yearly the interest or income of the sum of fifty thousand dollars, which stun must be set apart for the object stated, by them, as hereinafter directed; and I hereby confer upon him absolute power to dispose, give and bequeath the said principal sum of fifty thousand dollars by last will and testament in such manner as he may deem proper.”

The testator’s widow is still living. His brother, David Seaver, died in October, 1892, having executed the power of appointment as to the $50,000, by a will bequeathing the same to his children, Frances S. Hall and William Seaver.

The death of David, leaving the widow of testator still' surviving, creates a situation not provided for in the will, thus presenting for solution a question as to what should be the action of the trustee plaintiff in regard to the annuity for David, provided for in the fourth paragraph, of $1,200 a year, and another, resulting from the exercise by David of the power of appointment, evidenced by his bequest of the $50,000 to his children.

The fate of the annuity of $1,200 will be first considered. That the pathway to an entirely satisfactory conclusion is beset with difficulties is conceded. The well-established duty of the court is to search most rigorously for testator’s intention, and, when discovered, to give it effect, unless legal principles intervene to prevent.

The testator did not intend that it should benefit his widow under any circumstances, because of its application to the use of his brother during her life. His intention to provide an income for his brother during life is plainly indicated by the fifth provision which upon his widow’s death creates a special fund, the income whereof _ was for his use, with a" power to dispose of the principal sum. The - grant of this power indicates an intention of testator to benefit those to whom his brother would naturally bequeath the fund, his two children. An intent to provide for David was also one to assist the children; in doing for the one he did for the others. Is not beneficence to a parent equally so to the children? I am of that opinion. The cessation of any benefit to David’s children produced by his death before testator’s .widow will thus be avoided. Should the annuity- lapse, an' interregnum will arise, not intended by testator, because the plaintiff trustee has no power to set apart the fund of $50,000 until the widow’s • demise, and certainly none to diminish her income by so doing; It is for..these reasons a course is.taken to reach the. like •conclusion, differing from the one suggested, by the, learned jurist who was for many years an eminent member of this court.

.■It. may be added that the conclusion reached affects in no degree the- right of. any recipient of the .testator’s bounty.

■ In regard to the fund of $50,000, there can be no doubt that David rightfully exercised the power of disposition given him by testator. .Bis, death, leaving ■ the widow still surviving, affects only the time of enjoyment. The plaintiff trustee is not authorized to make payment under David’s will until after the widow’s death; otherwise her income would be decreased, in- violation of testator’s expressed intentioh. Those authorities’ cited by defendant’s counsel to support the contention that a lawful exercise of the power of appointment may rightfully curtail other benefactions .are not applicable here, in my opinion, for the reason that, the fund upon which an exercise of the power acts can have no existence as such until the widow’s, death. At -that time it should be set apart by the trustee and paid to the legatees námed by David. Meanwhile the trustee should pay .the $1,200 annually to David’s children. . '. ¡

Decreed accordingly.  