I dissent. The “ninth” clause of the will of Charles Frederick Fowles is in my opinion neither an attempt by the testator to change the law applicable to deaths by common disaster by creating a presumption binding upon the courts, nor an attempt to incorporate into the will by reference the provisions of another will. The provision is merely a clearly expressed declaration of the testator’s intention with respect to the disposal of his property in the event named, which event has come to pass. The will states: “Ninth. In the event that my said wife and myself should die simultaneously or under such circumstances as to render it impossible or difficult to determine, who predeceased the other * * * it shall be deemed that I shall have predeceased my said wife.” In other words, the testator said, if my wife and I should die in a common disaster, and it cannot be determined which of us died first, I direct that my property he disposed of in the same manner in which the law would have disposed of it had I died first. He does not enjoin the courts to indulge in a presumption as to who died first. On the contrary, he recognizes that the courts could not legally adopt such a presumption, and requests them to indulge in a jfiction for the purpose of effectuating his intention with respect to his property. The creation of a fiction is not an uncommon method of testamentary expression. We frequently' find and give effect to such provisions as, for example, that a testator’s property be distributed in certain events and at a time long subsequent to his death as if he “ had then died intestate and without issue,” or provisions that a child of the testator shall in a certain event “he deemed to have survived ” him for the purpose of distributing his estate. To execute such directions we must assume a situation which is contrary to the actual facts and contrary to the result which would flow as a matter of law from the facts as they actually exist, and apply the law as if the fiction created by the testator *650were fact. This we frequently do in order to give effect to the right of every man to dispose of his property in accordance with his intention clearly expressed by will, provided such intention does not contravene either a rule of law or of public policy. The provisions of the “ ninth ” clause of the testator’s will in the present case do not create a result which is contrary to public policy or good morals. The rule of law applicable to the actual facts is not material, for the testator does hot request the court to apply a presumption to the actual facts, but to assume, in construing his will and distributing his property, a state of facts contrary to the actual facts and founded in pure fiction. This I think the court should do in accordance with the directions of the will.
If it be deemed that the testator’s wife, Frances May Fowles, survived him, then her will, which in express terms purports to execute the power of appointment granted to her by the will of the testator, Charles Frederick Fowles, is a proper instrument in execution of the said power of appointment. The fact that at the time when her will was executed the power had not then vested in her is immaterial. (Hirsch v. BucJci, 162 App. Div. 659, 665, and authorities therein cited and discussed.)
Therefore, though I do not concur in the opinion of the learned surrogate of Hew York county, nor in the reasoning whereby he derived his result, I think the property which was subject to the appointment of Frances May Fowles by will should be transferred to the executors named in her will for distribution in accordance with her testamentary directions.
Decree reversed, with costs to appellants payable out of the estate, and decree ordered as stated in opinion. Order to be settled on notice.