#### Arthur R. Townsend, Individually and as Executor, Etc., Plaintiff, *v.*Edward T. Townsend et al., Defendants.

(Supreme Court, New York Special Term,

April, 1899.)

Remainder — Invalid execution of a power to appoint the amount of a vested remainder.,

Where a testator gives his widow a life estate in all his property and to his four, children vested remainders in such proportions as .the widow may appoint by. will, she cannot defeat the remainder of a child, who died- before her and devised bis share to his widow, by creating in her own will a trust, as to the child’s share, which has the effect of- diverting from his widow and devisee all the prim cipal and a part of the income. -

Action for the construction of a wilh

Wilson W. Thompson, for plaintiff.

Ambrose E, -McCabe, for defendant Sarah M. Gilbert.

Lyman A. Spaulding' (Charles E. Brown, of counsel), for Edward T. Townsend, an infant, by Wm. K. .Gilbert., guardian *•ad litem.*

*269Beach, J.

In the disposition of the question presented it is well to consider first the provisions of the will of. Jacob S. Townsend, who died in the city of New York on May 3, 1878, where he had long resided, leaving him surviving a widow, Eliza Á., and four .children. One of these provisions reads as follows: “I give and bequeath to my beloved wife the said Eliza A. Townsend all my. real and personal estate of every nature and description whatsoever, during her natural life.”

Another provision in said will is in these words: “I hereby authorize and empower my said wife by her last will and testament to give and bequeath all or any part of my estate which may remain at her death, to our children Mary, Edward J., Ida It. and Arthur B. in such shares or proportions as she in her discretion shall think fit.” •

The testator gave to his widow a life estate, and his four children each took a vested remainder, subject to be fixed as to proportions by a yalid exercise by the widow of the power of appointment.

The widow, Eliza A. Townsend, died a resident of the city of New York, January 23, 1898. She left a last will in exercise of the power of appointment, the pertinent provision reading as follows: “I give and bequeath an equal one-fourth part, portion and share of my. estate real and personal to my son-in-law Samuel A. Swart, in trust nevertheless to invest and reinvest the same in safe and secure investments and out of the net income and profits received pay an equal one-third part thereof to Sarah U. Townsend widow of my deceased son Edward J. Townsend for her úse, maintenance and support as long as she shall remain unmarried and during the same time to pay the remaining two-thirds of said net income and profits to my grandson Edward T. Townsend for his sole use, education, maintenance' and support.” There are other provisions regulating this trust, needless to specify.

The trust was created because the son of testatrix, Edward J. Townsend, died before his mother, and on June 8, 1888, leaving him surviving Sarah U. Townsend, his widow, and a son, Edward. T. Townsend. . By his last will he bequeathed and devised all his property to his wife.

The widow' bequeathed and devised the other three-fourths of the estate to her other three children in equal portions.

In the exercise of her power of appointment she was without authority to create the trust, diverting a part of the income to Edward T. Townsend, and under circumstances the whole one-*270fourth of the principal. This was an invalid -exercise of the power. Austin V. Oakes, 117 N. Y. 577. Because of such inability, that one-fourth portion passed absolutely under the .will of Edward 3*. Townsend to his widow Sarah IT. Townsend, his vested remainder under his father’s will became fixed at one-fourth,• by the terms, of his mother’s will, the plain intent being to divide the estate in such proportions.

There being no question raised affecting the validity of the mortgage, .it will be treated as though it. had been an- existent lien at the. death of the original testator.

A decree is ordered to conform with the conclusions expressed.

Orderd accordingly.