Opinion
April 17, 1959
George Dyson Friou, petitioner.
Robert W. Tasker as special guardian.
In his homespun self-styled testament the testator provided: "I hereby give devise and bequeath to my Beloved daughter, Lillian Louise Kruse, the full use of all income from my business and real estate, stock and all other resources where so ever derived from, to be used by her during her natural life and at her death the same then to be divided between my children as Lillian Louise Kruse sees fit to certain children as I have explained to her, as follows:"
Then follow the names of the seven other children.
Petitioner now seeks a construction of the aforesaid provision and a determination as to whether the purported power of appointment set forth therein is effective.
Section 135 Real Prop. of the Real Property Law defines a special power as one in which the persons or class of persons to whom the disposition of property is to be made, are designated. I find that under the provision of the will under consideration, the testator intended to and did confer a special power of appointment under which his daughter, Lillian Louise Kruse, was empowered to dispose of the property therein mentioned among the testator's other children in such manner as she might determine by her will. The qualification "as I have explained to her" is precatory in nature and is not binding upon the donee, who could exercise the power in favor of any or all of the persons designated. (Real Property Law, § 158.)
Settle decree on notice accordingly.