In re the Judicial Settlement of the Accounts of Piffard

Bradley, J.: The question presented is whether the legatees of the will of Sara.li Eyre Piffard are entitled to the one-fifth part of the estate of David Piffard, deceased, by virtue of the power of appointment and direction given by his will. If their right depended upon a mere power given by his will, without any other supporting provisions, and the execution of it by her will, there might be some difficulty in supporting their claim in view of the provisions of her will, and of the fact of her decease prior to that of the donor of the power. (Jones v. Southall, 32 Beav., 31.) And a like difficulty would be apparent if the affirmative finding of intent, in fact, on her part to execute the power, were requisite to such result. But the provisions of the will of David Piffard go farther and make the will of his daughter operate as execution of the power, in the event only that he survive her, otherwise the fund goes to her as its sole beneficial legatee. And the rule of the common [37] law requiring affirmative evidence, in a will of intent to execute by it a power of appointment for its consummation, has been abrogated by the statute which provides that “ lands embraced in a power to devise shall pass by a will purporting to convey ail 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.” (1 R. S., 737, § 126.) The rule declared by this statute is applicable to personal as well as to real property. (Cutting v. Cutting, 86 N. Y., 522; Hutton v. Benkard, 92 id., 296.) It is, however, contended on the part of the appellants that her intent that her will should not operate as an execution of the power does appear by necessary implication, because her death was nearly two years prior to that of her father, and by her will the intent appears to dispose by it of her property only. It is quite true that the power expressed in his will did not become effectual as such until his death, and that at the time of her decease the fund in question was no part of her property, and her will was ineffectual to vest, at that time, any right to it in her legatees. While no greater force could be given to her will than it then had, the operation, of its provisions may have become effectual, in some future event, to afford and vest rights which were inchoate at the time of her death. If permitted to apply to personal property, the statutory term applicable to powers as such, that given by the will of David Piffard, may be treated as a general and beneficial power. (1 R. S., 732, §§ 77-79.) No person other than the donee of the power had any interest in its execution ; and there is no apparent difficulty arising out of her death prior to that of the donor in the consummation of the execution of it, through the will o'f the former, if the provisions of the wills of both of them are such as to fairly require that result. This situation renders the consideration of the purpose of the father, as found in his will, somewhat important. He evidently intended to dispose of all his property by his will, and his purpose in that respect should be effectuated if circumstances permit. ( Vernon v. Vernon, 53 N. Y., 351.) The situation which he had in view, to give effect to the execution of the power, was his survival of the donee of the power, and in that event only, he directed the payment of the fund (the one-fifth of the proceeds of his estate) to the executors of her will. Such [38] direction is, in that event, unqualified by any provision of his will, but it may be deemed dependent upon the sufficiency of the provisions of the will of his daughter to dispose of the fund. This right of execution of the power and disposition of the fund was not confined to a testamentary instrument made after that of the donor, by which the power was created, but he expressly gave the effect of execution of the power to the will of the donee, if it had been before then made. It would, therefore, seem that the execution of the power was not by him made dependent upon the actual intent in fact of the donee at the time of making her will, but only on the sufficiency of its provisions to carry the fund and permit her executors to dispose of or distribute it. Miss Piffard disposed of all her property, by the terms of her will, and the words “ my property,” which she used in the will, cannot fairly be treated as words of limitation to property, the title to which was vested in her at the time of her decease, but embraced all property which she then or in any future event had the right to dispose of by her will pursuant to any power devolved upon her. (1 R. S., 737, § 126 ; Hutton v. Benkard, 92 N. Y., 295-301.) As the inquiry proceeds it is seen that after the death of the donee, and again eight months after her will was admitted to probate, the donor of the power, by further codicils to his will, distinctly ratified and confirmed the provisions of his will, giving the power of appointment and the direction to pay the fund to the executors of her will. lie thus continues to speak not only from the time those provisions were inserted in his will, but speaks also as of the time of the execution of the codicils. (Brown v. Clarke, 77 N. Y., 369-375.) And while they do not have the effect to add any force to the provisions of the will as before made, the confirmatory declarations in the codicils, after the death of his daughter and after the probate of her will, go in support of and seem to require the conclusion that his purpose was that the fund in question should pass by her will to the legatees named in it. "Whatever views may be entertained of the intent in fact of the donee, the legal effect of the provisions of the will of David Piffard was to impress upon her will the intent on her part to execute the power and to pass the fund to her legatees. This view effectuates the apparent intent of tbe donor and, as we think, violates no rule of construction or of law. [39] In White v. Hicks (33 N. Y., 383; affirming S. C., 43 Barb., 64) much discussion would have been obviated if the rule of intent declared by the statute had then been treated as applicable to powers relating to personal as well as real property. No other questions seem to require consideration. The decree should be affirmed. Smith, P. J., and Barker, J., concurred; Haight, J., not sitting. Decree affirmed, without costs.