(dissenting in part). Edgar Allan Lynn, now deceased, held a power of appointment under the will of Ms father, John Lynn, wMch power authorized the donee by his will to dispose *519of the principal of a trust fund created by the donor. In making his will, however, Edgar Allan Lynn made no mention of this power of appointment. The terms of his will in this respect are precisely the same as the will involved in the case of Low v. Bankers Trust Co. (270 N. Y. 143, 150), where the situation was described as follows: “ We can read this will from beginning to end without receiving a suggestion or intimation that the testator had a power of appointment under the deed of Francis L. Hiñe. The will does not indicate that he even had the power of appointment in mind or that he actually or in fact intended to exercise the power of appointment. It is section 18 of the Personal Property Law, read into this will, which makes it obligatory upon the courts to consider the passing of all personal property as including the power of appointment. This section, however, does not prevent us from seeking the testator’s intention as to other matters from the reading of his will, having in mind the situation and condition of his property.”
The “ other matters ” referred to in the foregoing quotation would seem to mean matters other than the question of the intention to exercise the power of appointment. That intention is conclusively presumed by law. Our present problem is to seek the testator’s intention concerning the fund from which- a certain legacy to one Rodriguez, set up in the will of Edgar Allan Lynn (the name of said legatee being spelled “ Rodrigues ” therein and referred to at length hereafter), was to be supplied.
In his will Edgar Allan Lynn made two bequests: one to Ms sister of $75,000 absolutely, and the second to a friend, Eric Victor Smaje, of a like sum. He then directed that the sum of forty dollars a week be paid to a second friend, Mariano Rodriguez, during the latter’s lifetime, and directed' Ms executors to set up a fund “ from my estate ” the income of wMch should be sufficient to pay the sum of forty dollars per week. The will specifically provided that tMs fund was to be set up from funds remaining after the two bequests of $75,000 each to Ms sister and Smaje had been paid. The will also provided that in the event there remained a sum in excess of the amount necessary to set up the fund for Rodriguez, the excess was to fall into testator’s residuary estate. In the event the sum remaimng after paying the two aforementioned bequests was insufficient to set up a fund, the income of wMch would pay forty dollars a week to Rodriguez, then a fund was to be set up of such sum as remained over and above the two pecumary bequests. Whatever income was thus raised was to be paid to Rodriguez.
*520The parties concede that by reason of the provisions of section 18 of the Personal Property Law, there was a valid exercise by Edgar Allan Lynn of the power of appointment created in his father’s will. This is because the statute provides that personal property embraced in a power passes by any will purporting to pass all the property of the testator, unless the contrary intent shall appear expressly or by necessary implication.
Upon the accounting of the trustees under the will of the father, John Lynn, said trustees asked for construction of the will of Edgar Allan Lynn. The necessity for such construction arose because it was found that the personal estate of Edgar Allan Lynn amounted to only $118,000. The value of the appointive property under his father’s will amounted to $100,000. It became apparent, therefore, that without the appointive estate the legacy to Rodriguez could not be fulfilled. The facts concerning the size of the estate of Edgar Allan Lynn were stipulated before the surrogate, but, in so far as we can ascertain from the record, the parties limited their stipulation to the values at the time of the hearing before the surrogate on the accounting. The additional oral stipulation made on the argument before this court, while it shows that decedent’s personal estate amounted to only $118,000 at the time he made his will, does not establish whether his property consisted of securities or other assets, and whether they were of a nature that would make the value thereof constant or variable, nor is there any other proof which would show that Edgar Allan Lynn had knowledge that his personal estate would be insufficient to meet the legacy to Rodriguez.
After the surrogate had determined the issue of construction an application was made by Rodriguez for a reargument and rehearing upon the ground of alleged newly-discovered evidence. In an affidavit submitted on that application, an attorney who drew a former will for Edgar Allan Lynn, offered to show that Edgar Allan Lynn intended to merge the appointive estate with his personal estate in making the former will which contained similar legacies to those found in the present will. The surrogate refused to reopen the hearing upon the ground that the evidence was not newly discovered, and for the further reason that the proof offered to'show intent of the testator was incompetent because it consisted of direct statements of intention evidenced by declarations of the donee. We deem that the denial of the motion for a rehearing was warranted, and that the question of construction should be decided on the language of the will, plus the sole fact as to the value of his personal estate.
*521The problem we are faced with is to determine whether, under the will, it is proper to merge the appointive estate with the testator’s personal estate in order to furnish the whole or a part of the fund necessary to care for the provision in Rodriguez’s behalf.
The surrogate held that no recourse might be had to the appointive estate in order to carry out the provisions of Edgar Allan Lynn’s will creating a fund to Rodriguez. In doing so he followed the general rule of construction that the testator’s individual estate not otherwise disposed of constitutes the natural and primary fund for the payment of legacies as well as of debts. This rule is controlling unless the will either in express terms or by necessary implication discloses a different intention on the part of the testator. (Farmers’ Loan & Trust Co. v. Kip, 192 N. Y. 266, 283.)
Finding that there was no sufficient proof of a contrary intention, the surrogate held that no merger was to be spelled out. He pointed out in his opinion (174 Misc. 364) that the will provided that the trust fund for Rodriguez was to be set up “ from my estate,” and that this was expressive of the intention of the testator that only his personal estate was to be used for that purpose. (See Low v. Bankers Trust Co., supra.)
The surrogate further stated in his opinion that the property embraced within the power of appointment is to be conceived as passing under the residuary clause of the donee’s will when the will is otherwise silent as to the execution of the power. (See Lockwood v. Mildeberger, 159 N. Y. 181.) It is true that, by virtue of the language of section 18 of the Personal Property Law, the power of appointment is to be deemed to have been exercised where the whole will purports to pass all the property of the testator. It is likewise true, however, that a will such as the present one containing general pecuniary legacies and a residuary clause would not, in the absence of the residuary clause, be effective to execute a power of appointment. There might well be wills which would contain no residuary clause and which would, nevertheless, be effective to execute a power of appointment under the statutes. For instance, a will giving all of one’s estate to a named beneficiary, or one giving a fraction or all the testator’s property to a named beneficiary and the remaining fraction to another, might do so, for such wills would seem to come within section 18 of the Personal Property Law. Generally, however, it is the residuary clause which completes the disposition of all of the testator’s property and, therefore, it is frequently said that the property embraced within the power passes under the residuary clause.
In the present will we have no mention of the execution of the power and no actual intention to execute it is shown. The intention *522to dispose of all the property of testator is shown to exist by reason of the residuary clause, and I think, therefore, the surrogate was correct in his statement that the appointive property passed under the provisions of the residuary clause. Clearly the general pecuniary legacies alone would not be sufficient to execute the power of appointment. (Pers. Prop. Law, § 18. See Slayton v. Fitch Home, Inc., 293 Mass. 574; 200 N. E. 357.)
Property which passes under a power of appointment is not ordinarily deemed the property of the donee, but of the donor of the power (Matter of Harbeck, 161 N. Y. 211), and it is frequently said that such property passes under the will of the donor of the power, the donee of the power being considered merely as agent of the donor. Appointive property, therefore, is not considered part of the estate of the donee unless an intention to bring it into that estate is apparent, or unless by reasonable exercise of the court’s equitable power that result may be achieved to avoid intestacy.
It was upon the basis of this rule of construction, to wit, that the appointive estate is not deemed part of the property of the donee of a power that this court held that the appointive estate involved in the case of Hirsch v. Bucki (162 App. Div. 659) was not subject to the claims of donee’s creditors.
Our courts have frequently recognized the rule that the appointive estate is not to be deemed merged in the personal or individual estate in the absence of some provision showing such an intention. In Matter of Wainwright (248 App. Div. 336) that rule was pointed out as the general one, but because provisions in portions of the will other than the residuary clause showed an intention to merge the estates, it was there held that persons named as general legatees would be deemed to be the recipients of the appointive estate.
Occasions may arise where to avoid intestacy the courts will apply a rule of construction permitting .the payment of a general legacy out of the appointive estate. An example of such a will is found in the case of Fargo v. Squiers (154 N. Y. 250). In the Fargo case (supra), however, the testatrix specifically referred to the power of appointment in her will, showing that it was clear in the testatrix’s mind that the appointive estate would be included as part of her residuary estate. It was because of this situation that the court in that case said: “ The words ‘ rest and residue ’ may apply to the estate of which she had the power of appointment, as well as to her individual estate; and if these specific bequests made by her exceed her individual estate there could be no question but that they would be payable out of the trust estate created by her father.” It is plain that the court was speaking of the method of allocation to be *523followed where an intention to merge was expressed in the will. We have no such expression of intention in the present case; nor do we find any grounds for implying such an intention.
Where, as here, no intestacy would result in any event and where, therefore, the court is not called upon to exercise its equitable powers other than to construe a writing, it would seem proper to hold that, in view of the provisions in the present will that the fund for Rodriguez was to come “ from my estate,” the appointive estate is not to be allocated to the payment of this legacy.
The sole purpose of section 18 of the Personal Property Law is to effect the execution of a power of appointment. Its provisions do not require us to alter the rules of construction ordinarily applied in ascertaining intention merely to overcome insufficiency in the owned estate of a testator.
The decree of the surrogate construing the will of Edgar Allan Lynn, and his order denying the motion to vacate the decree should both be affirmed, with costs.
Cohn, J., concurs.
Decree modified in accordance with the opinion of Martin, P. J., and as so modified affirmed, with costs to the appellant payable out of the estate. Order denying motion to vacate decree and for a new trial on the ground of newly-discovered evidence unanimously affirmed. Settle order on notice.