#### Alonzo B. Garrett, Appellant, *v.*Bianca E. Duclos and William R. Rose, as Trustees under the Last Will and Testament of Frederick Duclos, Deceased, Respondents.

First Department,

November 6, 1908.

Will—trust construed — life estates with power of disposition in survivor — when beneficiaries cannot extinguish trust.

ÍJndef a will devising property in trtist, the net income to be divided between the testator’s two sisters during their natural lives and providing that upon the death of either, the entire income is to go to the survivor for her natural life, the trustee upon the death of the survivor to convey the corpus in such manner as the survivor shall direct, during her lifetime by will or otherwise, the power of appointment is lodged solely in the survivor and cannot be exercised *509by either beneficiary during the life of both, even in favor of each other, so as to vest the title to the remainder in either or both.

Section 3 of chapter 417 of the Laws of 1897 providing, under certain circumstances, for the extinguishment oj a trust by a beneficiary who is also entitled to the remainder does not authorize the extinguishment of the trust aforesaid.

Appeal by the plaintiff, Alonzo B. Garrett, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 8th day of March, 1907, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the defendants’ demurrer to the complaint.

*Edward J.*Maxwell, for the appellant.

*Benjamim, G.*Paskus, for the respondents.

Laughlin, J.:

The question presented by this appeal is whether the trusts created by paragraph “First” of the will of Frederick Duclos have terminated. The beneficiaries of the trust assigned their interest in the income and to the corpus of the fund to plaintiff and have attempted to release their interest in the income in accordance with the provisions of section 3 of chapter 417 of the Laws of 1897, as it stood before it was amended by chapter 87 of the Laws of 1903, upon the theory that they were, or one of them was, entitled to the entire remainder.

It is quite clear that they could not release the trusts for they had not become and never could become entitled to the remainder under the provisions of the will which, so far as material to the decision of this question, are as follows:

“ *First.*I give and bequeath unto my executors hereinafter named, or such of them as may qualify, the sum of Twelve thousand dollars, for them to have and to hold the same in trust, nevertheless, to and for the following uses and purposes, namely: To invest and keep the same invested, to receive the rents, issues and profits thereof, and to pay one-half of the net rents, issues and profits so received to my sister, Adelaida Duelos, during the term of her natural life, and the remaining one-half of the said net rents, issues and profits to my sister, Amalia Duelos, during the term of her natural life; upon *510the death of either of my said sisters, whichever one shall die first, to pay the entire net rents, issues and profits to the surviving sister during the term of her natural life; and upon the further trust at' the death of the surviving sister, to transfer and pay over the principal or corpus of the estate held in trust, as aforesaid, to such person or persons and in such manner as said -surviving sister -shall during her lifetime, by will or otherwise, have directed.”

The testator merely gave his sisters life estates with a power of appointment in the survivor to dispose of the remainder. That power of appointment could not be exercised in advance by each sister in favor of the other so as to vest either or both with the remainder. It was only given to the survivor, and since at the time, its execution was authorized one of -the -sisters must be -dead, and since it would take effect only on the death of the survivor, it follows necessarily that neither was entitled nor could become entitled to the remainder.

Section 3 of -chapter 417 of the Laws of 1897, which governs this trust on the point in question, because the testator died in September, 1901, and the amendment enacted by chapter 87 of the Laws of 1903 preserved the statute with respect to vested rights as it formerly existed, provides as follows: “ The right' of the beneficiary to enforce -the performance of a -trust to receive the income of personal property and to apply it to the use of any person can not be transferred by assignment or otherwise; but the right and interest of the beneficiary of any other trust in personal property may be transferred. Whenever a beneficiary in a trust for the receipt of the income of personal property is entitled to a remainder in the whole or a part of the principal fund so held in trust, subject to his beneficial estate for a life or lives or a shorter term, he may release his interest in such income, and thereupon the estate of the trustee shall cease in that part of such principal fund to which such beneficiary has become entitled in remainder, and such trust estate merges in such remainder.”

The statute expressly prohibited the transfer of the rights of these beneficiaries to enforce the performance of -the trusts for their benefit and provided for the termination of trusts to receive and apply the income of personal property to the use of any person only in one contingency which, as has been seen, has not happened and *511cannot happen under this will. The complaint, therefore, fails to state a cause of action and the demurrer thereto, was properly sustained.

It follows that the.judgment should be affirmed, with costs.

Patterson, P. J., Ingraham, Clarke and Scott, JJ., concurred:

J udgment affirmed, with costs, with leave to plaintiff to amend on payment of costs.