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Appointee's Right of Election.

§ 220

Mary Lewis, one of said children, died May 14, 1907, leaving three children, and in the twelfth clause of her will, after referring to the power of appointment given her as above stated, exercised such power in the following language:

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Now, therefore, by virtue of the power of designation and appointment so conferred, I do hereby direct and appoint, that the part or share of my said father's estate held in trust by his executors and trustees for me under said will, be immediately upon my death divided into as many equal shares or funds as I shall leave children and issue of deceased children me surviving, and that one of such shares or funds shall be conveyed, paid, and assigned to each child so surviving me, and one of said shares or funds to the issue surviving me of any deceased child, such issue to take by representation."

The children of Mary Lewis filed with the appraiser an election to take their title to this fund under the will of Moses Taylor, instead of under the exercise of the power by the will of their mother. It will be seen that the facts in the Lewis case are identical with those in the Cooksey case, so far, at least, as to the apparent vesting of the share to which Mary Lewis was given the life use with power to appoint. Surrogate Beckett, in his opinion, says:

"The donor of the power having provided that the corpus of the estate should, upon the death of the donee of the power, be paid to such persons and in such proportions as she by her last will and testament should appoint, and the donee having by virtue of this power appointed the persons to whom the property should be paid, these beneficiaries derive their title to the property through the exercise of the power of appointment by decedent and not directly from the donor of the power. It was only upon the failure of the donee of the power to appoint that they could have taken under the will of the donor. In Matter of Lansing, 182 N. Y. 238, Vann, J., commenting on the Cooksey case, said, respecting the donor's will in that case: Moreover, title to the remainder was to vest in them only upon the failure of the mother to appoint.' Matter of Cooksey, 182 N. Y. 92; Matter of Haggerty, Surr. Decs., Thomas, S., 1908, 304."

The Appellate Division reversed the surrogate (129) App. Div. 905) holding that under the Matter of Lansing, 182 N. Y. 238, and the Matter of Haggerty, 128

§ 220

Appointee Notified of Appraisal.

App. Div. 479, the children had the right to elect to take under their grandfather's will. In the Court of Appeals the main ground relied on by the Comptroller to reverse the order of the Appellate Division was the fact that under the will of Moses Taylor, the share of Mary Lewis was vested in the executors and so remained vested until the death of the life tenant, and the said Mary Lewis having exercised the power of appointment, the children, in view of the decision in the Cooksey case, must take under the provisions of their mother's will and could not take under their grandfather's will. The Court of Appeals affirmed the decision of the Appellate Division, without opinion, 194 N. Y., mem.

200. Distinction between the Cooksey and Lansing Cases.

In the Cooksey case the power was exercised by changing the terms under which the appointees of the power could take, and thus the appointees must take under the exercise of the power or not at all; while in the Lansing case the exercise of the power made no difference as to the estate that the appointee of the power should take, but simply confirmed the provisions in the original will so that the exercise of the power left everything as it was, and, as the court said in the Lansing case, it was "a mere form with no substance." Matter of Haggerty, 128 App. Div. 479-483; affd., 194 N. Y., mem.

201. Appointee Should Be Notified of Intention to Appraise Trust Fund, Subject to Appointment.

In the Matter of Backhouse, 110 App. Div. 737, affd., 185 N. Y. 545, it appears that the decedent, George Backhouse, exercised a power of appointment in favor

Election Not Assumed.

§ 220

of his children in respect to the same property given said children by the will of their grandfather, subject to said power, but the appraiser in sending out his notices of appraisal only gave notice to the said children of the appraisal of the property of the decedent. The children did not appear before the appraiser, and his report included not only the individual estate of the testator, but also the trust property left by decedent's father and to which the appointment referred, and the transfer tax was imposed on the whole property appraised. The trustees under the will of the grandfather and the four children moved to modify the decree by striking out the part imposing the tax in respect to the trust property, and the court holds that the surrogate should have modified his decree, because the said children were not bound by it in so far as it imposed the tax in respect to the property they took under their grandfather's will, for they were only notified of an appraisal of their father's estate, and that was, therefore, the limit of the jurisdiction of the appraiser and surrogate on their default.

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An appointee under a power has the right of election the same as a grantee under a deed. Matter of Lansing, 182 N. Y. 238-244; Matter of Ripley, 122 App. Div. 419; affd., 192 N. Y. 10.

203. Election, Not Assumed, in Absence of Evidence.

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Where a will makes a gift in trust for the life of a beneficiary, with remainder to the beneficiary's heirs or to such person or persons" as such beneficiary may appoint in his last will and testament, and the beneficiary dies leaving a will which appoints his chil

§ 220

Vesting of Future Estate.

dren, said children take under the primary will and not under the will exercising the appointment, nor will it be inferred that such children elected to take under their father's will when there is no evidence of such election. Matter of Backhouse, 110 App. Div. 737; affd., 185 N. Y. 545.

204. The Right to Exercise a Power of Appointment Does Not Prevent the Vesting of a Future Estate, Limited in Default of Appointment.

In the Matter of Haggerty, 128 App. Div. 479; affd., 194 N. Y., mem., without opinion, the facts in respect to the exercise of the right of appointment were similar to those in the Lewis case (supra), and both this and the Lewis case were argued in the Court of Appeals on the same day.

Ogden Haggerty died August 30, 1875, and by his will gave to his executors in trust all his residuary estate, to divide the same into three equal shares, one of such shares to be for the benefit of his wife, and the other two shares for the benefit of each of his two daughters, respectively. As to the share designated for his daughter Anna K. Shaw, one-half thereof was given to her absolutely, and the remaining one-half to his executors in trust, to pay her the income thereof during her life, and on her death to pay and transfer the principal of one-half of such share to her issue, "and in case no such issue shall survive her, then to pay and transfer the said last mentioned one-half share to such person or persons as my said daughter Anna shall by her last will, or instrument in the nature thereof, executed in the presence of at least two witnesses, direct or appoint, and in default of such will or appointment then to pay and transfer the said last

Power; Does Not Limit Vesting.

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mentioned one-half share to my said daughter Clemence H. Crafts, if she shall survive the said Anna, or in case she shall not survive the said Anna, then to the issue then living of the said Clemence." Both of testator's daughters survived him. Anna K. Shaw had no children and died without issue March 17, 1907, leaving her sister surviving, and leaving a last will and testament by which she executed this power of appointment in favor of her sister. In proceedings before the transfer tax appraiser the daughter Clemence H. Crafts filed a formal instrument in writing, claiming the trust funds exclusively under the will of her father Ogden Haggerty, and refusing to take under the appointment. The surrogate found that the will of Ogden Haggerty was to be classed with that of the donor of the power in the Cooksey case (supra), and that the fund was taxable under the will exercising the appointment. The Appellate Division reversed the order of the surrogate, holding that upon the death of Ogden Haggerty, the testator Anna K. Shaw surviving and having no issue, the remainder vested in Clemence H. Crafts, subject, however, to be divested by the birth of issue of Anna K. Shaw, or by the execution of the power to dispose of this interest in the estate; that

"By section 30 of the Real Property Law (Laws of 1896, chap. 547), which is in substance a re-enactment of the Revised Statutes (1 R. S. 723, § 13), it is provided that 'A future estate is either vested or contingent. It is vested when there is a person in being, who would have an immediate right to the possession of the property, on the determination of all the intermediate or precedent estates.' Section 31 provides that 'the existence of an unexecuted power of appointment does not prevent the vesting of a future estate, limited in default of the

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