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(182 N.Y.S.) offered no proof as to its value in Chicago. Defendant's proof of the Chicago value plus freight and insurance charges is therefore undisputed, and must be accepted. That is the basis upon which plaintiff's damages must be calculated. The same rule of damages applies where there is no shipment made as where a shipment is made that does not conform to the contract. Crozier v. Auerbach, [1908] 2 K. B. 161, 165.

Judgment for the plaintiff accordingly, with costs. Settle findings on notice.

(110 Misc. Rep. 575)

DUFF et al. v. RODENKIRCHEN et al. (Supreme Court, Special Term, New York County. February, 1920.) 1. Powers Om 36(1) --Appointment by son's will, if valid, held execution of

power of appointment under his father's will, though not referring to it.

Where J., a surviving son, and his sister, each received under their father's will a beneficial life estate in one half of the residuary estate, and a remainder for life in the other half on survivorship after death of original life tenant without issue, and the remainder after their death was devised to such person as survivor might by will appoint, and where sister, dying without issue, devised her residuary estate to J., and he, dying without issue, devised residue of his estate in trust for his wife, with power of appointment by will, the power given by J.'s will, if valid, was, under Real Property Law, $ 175, an execution of his power under his

father's will, though not referring to it. 2. Powers E36 (1)-Will of son having power of appointment under father's

will, and also having an independent interest in property, exercising his power of appointment, would be construed as devising his independent interest.

Where a son was devised a beneficial interest in one-half of father's residuary estate, and by his sister's will was given her one-half of residuary estate, and by their father's will the remainder was to go to those whom the son, as surviving life tenant, should by will appoint, and he devised residue of his estate in trust for his widow for life and to those whom she might appoint on her death, the rule of Real Property Law, $ 178, that son's will was an execution, so far as valid, of his power, did not apply, where he also had an independent interest in property, so that his whole will would be construed as a devise of such independent interest, and, if he could not devise it for life, the entire attempted devise would be

invalid. 3. Wills Ow694_Son, taking entire reversion of father's estate on failure of

execution of power, might devise it entirely apart from power of appointment in father's will.

Where J., a surviving son, and his sister, were each devised by father's will a beneficial life interest in one half of residuary estate, and a remainder for life in the other half on death of the other without issue, and the remainder after death of both without issue was devised to whom survivor might by will appoint, there was no provision in event of both dying without issue and without exercising power to dispose of remainder, and hence a reversion to father's estate, and J., then being an heir at law and the devisee of his sister's interest, took the entire reversion of his father's estate, in view of Real Property Law, $$ 36, 40, 59, and might devise it apart from power of appointment under his father's will.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

4. Perpetuities Ow6 (5)-Will of son held to create a new future estate in his

property, valid because, standing alone, it did not suspend alienation for more than one life.

Where surviving son and daughter were each given a beneficial life interest in one half of father's residuary estate, and a remainder for life in other half, contingent on survivorship, and the remainder, after death of both without issue, was devised to such as surviving life tenant might by will appoint, the will of the son, as survivor, giving residue of his estate in trust for wife and on her death to those she might appoint, created a new future valid estate in his property, which, standing alone, did not suspend power of alienation for more than one life, in contravention of Real Property Law, $ 178, though following immediately upon previous

trust for two lives. 5. Reversions Owl-Nature of estate stated.

A "reversion” is the residue of the estate left in the heirs of a testator, commencing in possession on the determination of one or more particular estates derised.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Reversion.)

Action for an accounting by Clementine Farr Duff and the American Security & Trust Company, as executors and trustees under the will of John J. Duff, deceased, against Mary J. C. Rodenkirchen and others, involving the construction of the will of John J. Duff and the will of his father, Michael Duff. Wills construed, and judgment accordingly.

M. F. Johnson, of New York City (Howard C. Taylor, of New York City, of counsel), for plaintiffs.

Morris A. Hulett, of New York City, for defendant Rodenkirchen.

Agar, Ely & Fulton, of New York City (John G. Agar, of New York City, of counsel), for defendants Duff and others.

Joseph Atz, of New York City, for defendants Fox and others.

Winthrop & Stimson, of New York City, for defendants Children's Seashore House and another.

John T. Sturdevant, of New York City, for defendant Episcopal Eye, Ear & Throat Hospital.

Arthur T. Clark, of New York City, guardian ad litem, for infant defendants Fox.

LEHMAN, J. The plaintiffs herein have brought an action for the settlement of the accounts of their testator as surviving trustee under the last will and testament of his father, Michael Duff, and in their complaint they ask for a construction of the will of John J. Duff, and for a determination of the rights of the parties herein to certain real estate and the proceeds of real estate, under the terms of the wills of John J. Duff, his sister, Mary Carey, and Michael Duff.

Michael Duff died a resident of New York county on October 28, 1904. At the time of his death he was seized of certain real property which passed under the devise of his residuary estate in his will. This will provides :

**Eighth. I give, devise and bequeath all the rest, residue and remainder of my estate, real and personal, of what nature or kind soever unto my executors

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(182 N.Y.S.) hereinafter named, in trust, to divide the same into two equal parts or shares and to apply the net annual income of one of said parts or shares to the use of my son, John J. Duff, during his natural life, and upon his death I give, devise and bequeath the said part or share of said estate unto the issue then living of the said John, to be equally divided between them per stirpes and not per capita, and in case my said son should die without leaving any issue him surviving, then I direct my said executors to apply the net annual income of the said part or share to the use of

daughter, Mary Carey, during her natural life, and upon her death, I give, devise and bequeath the said part or share to the issue of the said Mary, to be equally divided between them per stirpes and not per capita, and in case the said Mary should die without issue living at the time of her death, I give, derise and bequeath the said part or share unto whomsoever the said Mary Carey shall be a writing in the nature of a last will and testament appoint to receive the same.

“Ninth. I direct my executor aforesaid to apply the net annual income or the remaining part or share of my estate so held in trust by them to the use of my said daughter, Mary Carey, during her natural life, and upon her death I give, devise and bequeath the said remaining part or share of said estate unto the issue of my said daughter, Mary, then living, to be divided between them per stirpes and not per capita, and in case my said daughter should die without leaving any issue her surviving, then I direct my said executors to apply the net annual income of the said remaining part or share to the use of my son, John J. Duff, during his natural life, and upon his death I give, devise and bequeath the said part or share to the issue of the said John, to be divided between them per stirpes and not per capita, and in case the said John should die without leaving any issue living at the time of his death, then I give, devise and bequeath the said remaining part or share unto whomsoever the said John J. Duff shall by a writing in the nature of a last will and testament appoint to receive the same.

"Tenth. In case either the said Mary Carey or the said John J. Duff should at any time become entitled by the death of one of them to the income of both parts or shares of my said residuary estate, and the survivor of the said Mary and John should die without issue living at the time of his or her death, then I give, devise and bequeath the whole of the said two parts or shares, being the whole of the rest, residue and remainder of my said estate unto such person or persons as the said survivor sball by a writing in the nature of a last will and testament duly appointed to receive the same."

Both John J. Duff and Mary Carey survived Michael Duff, and each received a beneficial estate for life in half the residuary estate, and each received in addition a remainder for life in the other half, contingent upon survivorship after the death of the original life tenant without issue. The remainder after the death of the life tenants was devised to the issue of the life tenants, or, in default of issue, to such person as the survivor of the two life tenants might by last will or testament appoint. The will contains no devise to other parties if the life tenants died without issue and the survivor failed to exercise the power of appointment. The daughter, Mary Carey, died without issue on the 3d day of May, 1913, and by her will devised and bequeathed her residuary estate to her brother, John J. Duff. Since she did not survive John J. Duff, she had no power of appointment under her father's will, and she did not in her own will attempt to exercise such a power.

[1] John J. Duff died without issue in the city of Washington, D. C., on January 22, 1918, and left a last will and testament in which he devised and bequeathed the residue of his estate to the plaintiffs in trust for his wife, Clementine Farr Duff, for and during the terrr.

of her natural life, and after her death to transfer and convey the same to such persons as his wife may appoint, and in default of such appointment, or if his wife should predecease him, to certain parties named in the will. Although the testator does not recite or refer to the power conferred upon him under the will of Michael Duff, this provision must be deemed to be an execution of that power, if it is otherwise valid. Real Property Law (Consol. Laws, c. 50) $ 175.

[2] It is almost conceded by all parties that the provision of the will of John J. Duff is not a valid execution of the power conferred upon him by the will of Michael Duff in respect to the share of the estate originally devised to Mary Carey for life. · In that portion of the estate Mary Carey was the first life tenant, then John J. Duff was life tenant, and since “the period during which the absolute right of alienation may be suspended, by an instrument in execution of a power, must be computed, not from the date of such instrument, but from the time of the creation of the power" (Real Property Law, $ 178), it is quite clear that John J. Duff cannot, by virtue of the power conferred upon him under his father's will, suspend the absolute power of alienation for a third life. In my opinion it is equally clear that this provision of John J. Duff's will is not a valid execution of the power conferred upon him under his father's will in respect to the share originally devised to him for life. Under Michael Duff's will the power of absolute alienation of his whole estate was suspended during the lives of both son and daughter. Michael Duff could not by his own will have provided that John J. Duff's share should go to him for life and then to Mary Carey, or, if Mary Carey should predecease John J. Duff, then to a third person for life, and Michael Duff could not by will give to his son a power which he did not himself possess.

It is urged, however, that even if the will of John J. Duff is not a valid execution of his power to dispose of the remainder of his father's residuary estate, in so far as it creates a trust for his wife for life, the court should still give effect to the other parts of his will in so far as the will appoints others to receive the fee after the death of his · wife. Possibly, if John J. Duff had no interest in the property formerly owned by his father, and could dispose of it only through the power conferred upon him by the will of his father, and the court could determine that it was John J. Duff's intention that, if the life estate he attempted to create and the power he attempted to give his wife to dispose of the remainder were not valid, the gift over to other parties should take effect, the court would find some means to give effect to this intention; but in this case John J. Duff did, in my opinion, have a personal interest in the property, and the court would violate his clear intention if it enforced any provision of the will which would deprive John J. Duff's wife of any portion of the property Ti hich he attempted to devise to her for life, or which she would receive if he died intestate. The entire scheme of John J. Duff's will shows that it was his intention to provide primarily for his wife. He gave her, not only a beneficial interest in his estate for her life, but also a power to dispose of the estate by will.

(182 N.Y.S.) [3, 4] The rule of the statute that the will of John J. Duff must be regarded as an execution, so far as valid, of the power conferred on him by his father's will, has no application where, in addition to the power, the testator has an independent interest in the property. Mutual Life Ins. Co. v. Shipman, 119 N. Y. 324, 24 N. E. 177. The reasoning of that case applies with particular strength to the present situation. If John J. Duff had an independent interest in the property which he could devise to his wife for life, then the court must give effect to the whole will as a devise of the interest, and not as the attempted execution of a power, and if he had such interest, even if he could not devise it for life, the court should then regard the entire attempted devise as invalid, for it is clear that the testator would never have made any devise which would deprive the wife of any rights in his estate. Since Michael Duff by the residuary clause of his will failed to provide for the contingency of both his children dying without issue, and without executing the power to dispose of the remainder after the death of the life tenant, there was a reversion in his estate which he failed to dispose of by will, and which passed as if he had died intestate. At the time of his death John J. Duff and Mary Carey were his heirs at law, and any estate which he possessed at that time, and which was not disposed of by will, passed to them, or perhaps it would be more accurate to say remained in them.

[5] The contention that this reversion was a contingent future estate, which vested in the heirs of Michael Duff only when the contingency that both life tenants would die without issue, and without having executed the power conferred in the will, and that his heirs must be determined as of the time of vesting, is supported neither by reason nor authority. A reversion under the statute is an estate in expectancy, but not a future estate. Real Property Law, $ 36. It is the residue of the estate left in the heirs of a testator, commencing in possession on the determination of one or more particular estates devised. Real Property Law, $ 59. The term "reversion” necessarily assumes that the grantor has not parted with his entire estate, and neither under the terms of the statute (Real Property Law, $ 40) nor at common law are the rules in regard to vested or contingent estates applicable.

Since a reversion is the residue of an estate which is left in the grantor or his heirs or in the heirs of a testator, it follows that there can be no question of when this estate vested. At the death of Michael Duff the reversion in the property not devised was a residue left in his heirs John J. Duff and Mary Carey. The survivor of these heirs without issue had power to complete the alienation of Michael Duff's property, and thereby terminate the reversioner's expectant estate; but in the absence of the execution of such a power the reversion ripened from an estate in expectancy to the full fee, including the right of possession. All expectant estates are descendible, devisable, and alienable in the same manner as an estate in possession, and since John J. Duff was the heir at law and the residuary devisee of Mary Carey, at the time of his death he was the owner of the entire reversion of

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