Opinion
June 24, 1938.
Appeal from Surrogate's Court of New York County.
Present — O'Malley, Untermyer, Dore, Cohn and Callahan, JJ.; Untermyer, J., dissents in part; dissenting opinion by Untermyer, J.
Decree, so far as appealed from, affirmed with costs to the respondents payable out of the fund. No opinion.
I concur in the conclusion of the surrogate, that in the absence of an express restriction in the donor's will the donee's power to appoint a fee included power to appoint a lesser estate. I do not agree, however, that power existed to appoint future estates to issue of the donee's children who were not in existence at the death of the donee, at which time the trustees were required "to pay and divide" the principal of the trust. The provisions of the will of James B. Kennedy are, in our opinion, distinguishable from those under consideration in Hillen v. Iselin ( 144 N.Y. 365) on which the surrogate relied.