
    Helena Maria Richter, Respondent, v. Katherine F. Lindemann, Appellant, Impleaded with Johanna Von Meyer and Others, Respondents.
    First Department,
    January 22, 1915.
    Receiver — action for partition — possession of defendant under deeds and exercise of power of appointment.
    Where a defendant in an action for partition has possession of real property under deeds from a deceased devisee who was given a power of sale, and also holds under the will of said devisee, who had a power of appointment, her possession should not he disturbed by the appointment of a receiver of the rents and profits.
    Appeal by the defendant, Katherine F. Lindemann, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of December, 1914, appointing a receiver of the rents, issues and profits of the premises described in the complaint, in so far as said order appoints a receiver of parcels 2, 3 and 4 of said property.
    
      Leslie C. Ferguson, for the appellant.
    
      Florence J. Sullivan, for the plaintiff, respondent.
    
      Charles A. Dryer, for the respondent Von Meyer.
   Latjghlin, J.:

This is an action for the partition of five parcels of. real estate of which John George Lindemann died seized and possessed on the 7th day of August, 1884, leaving a last will and testament which was duly admitted to probate by the Surrogate’s Court of the county of New York on the 28th day of August, 1884, by which he gave his wife, Helena Maria Elizabeth Lindemann, who died on the 25 th day of January, 1913, without having remarried, a life use or use during widowhood of the residue of his estate after the payment of his debts, and a power of appointment with respect to the remainder to be exercised by will, and also gave her authority to sell any or all of his real estate. The plaintiff and appellant are daughters of said Helena M. E. Lindemann, and the appellant claims ownership of parcels 2, 3 and 4 by virtue of the exercise of the power of appointment by the last will and testament of her mother, and of parcels 3 and 4 also by virtue of a deed from her mother as executrix of her father. The other heirs claim that there was no valid exercise of the power of appointment, and that the deeds were fraudulent, in which event, concededly, the appellant is entitled to an undivided one-sixth interest in each parcel and she shows that such interest is worth many times more than any possible liability or loss to the respondents if a receiver be not appointed.

The appellant shows by affidavit that she is worth in real property according to its assessed value over and above incumbrances upwards of $100,000, exclusive of her interest in the real estate in question; but the respondents attempt to deny this and contend, on affidavits in general terms without stating the facts, that the appellant is insolvent. The income amounts to about $5,000 per annum, and the theory upon which the appointment of a receiver is sought is that the appellant has collected and is collecting the rents and has failed to pay the taxes and to keep the buildings in repair.

The will of John George Lindemann provided that upon the ‘ ‘ death or remarriage ” of his widow, whichever event happened first, he gave the residue of his estate to such person or persons as she shall direct and appoint by her last will and testament in case of her death, or by instrument under her hand and seal, duly acknowledged, in case of her remarriage.”

The widow’s will recites that she executed conveyances as she desired to appoint the property, and left them with an attorney in escrow to be delivered to the registrar for record upon her death. If those recitals were the only provisions of the will with respect to the execution of the power of appointment, the validity of the execution of the power of appointment might well be doubted; but the will contains other provisions tending to show that she thereby, without regard to the deeds, appointed the property as she desired it to go, and appointed the three parcels, to which the appeal relates, to the appellant. We do not now intend to express a decided opinion and foreclose argument with respect to the construction and effect of her will, or with respect to the validity of the deeds or conveyances by the executrix; but we hold that it sufficiently presumptively appears that the parcels in question have been appointed or conveyed to appellant to render it the duty of the court to refrain from disturbing her possession until the tria of the issues.

It follows that the order in so far as it is appealed from should be reversed, with ten dollars costs and disbursements, and the motion with respect to parcels 2, 3 and 4 denied, without costs.

Ingraham, P. J., McLaughlin, Scott and Dowling, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied as stated in opinion, without costs.  