I dissent, and am of opinion that the plaintiffs and defendant Emily A. Watson should have judgment that the transfer tax upon *399the fund of $500,000 in the hands of the defendant Ambrose li. Ely, as trustee under the will of John Watson, deceased, for the benefit of the testatrix, Mary J. Walker, to be distributed pursuant to the 1st clause of her will, wherein she exercised the power of appointment given under the will of said Watson, is payable out of said fund and not out of the residuary estate of the testatrix. By the clauses of her will, subsequent to the 1st and preceding the 23d, she disposed of more than $1,000,000 in legacies payable out of her own property. These are the legacies concerning which I think she intended that the transfer tax should be payable out of her residuary estate. The beneficiaries, who received this trust fund by her exercise of the power of appointment, are not her legatees. They take through the will of John Watson; and if the transfer tax had been imposed subsequent to his death, those legacies for this reason would not have been subject to the tax. (Matter of Harbeck, 161 N. Y. 211.) The testatrix received no personal benefit from the principal of this fund, as she was given a mere power of appointment concerning the disposition thereof. In these circumstances it is unreasonable to suppose that she intended that the transfer tax thereon should be paid out of her individual estate.
Judgment ordered for defendants as directed in opinion, with costs.