(dissenting). The pertinent facts and applicable rules of law have been most fairly and admirably stated in the majority opinion; but I cannot agree with the reasoning or the result reached.
Concededly testator had the power to exclude petitioner from benefiting from his estate if she married outside testator’s religion. The suggestion tendered by petitioner on this appeal that such an exclusion violates public policy has evidently been rejected by the majority, as it must be in the light of the authorities, which constrain us. (Matter of Liberman, 279 N. Y. 458, 464; Matter of Seaman, 218 N. Y. 77, 81.)
Concededly testator “ held strong views about intermarriage and * * * these views found expression in sweeping strictures prohibiting certain offending descendants or their spouses from taking under his will.” (Majority opinion, ante, p. 318.)
Concededly the will was drawn by competent craftsmen who were unlikely to have been responsible for inadvertent omission.
Concededly the only authorities that bear on the question, for whatever purpose, regard appointees who take under a power of appointment as taking under the will of the donor of *324the power, in this case the will of the great-grandfather. The will provided that no devisee or legatee might intermarry except at the expense of losing the legacy or devise to which he might be entitled. All this, we may presume, was within the knowledge of the competent craftsmen retained by testator to draw his will.
Yet the majority would construe the will herein strictly against the testator, contrary to his evident intention, and on the narrow limitation of language to particular paragraphs, although among lawyers the language would be inter-related between the paragraphs in question. This is applying a policy and a technique to a will that we reserve for lengthy contracts tendered by a strong bargaining party to a weaker bargaining party, as we may in the case of the insurance policy or the apartment lease. Then, because the weaker of the parties has no effective voice in suggestions for amendments to the agreement tendered, the law protects him by a policy of strict construction, which may indeed frustrate the intention of the draftsman, although not that of the other party to the transaction. That is not a rule or a policy that we may or should apply to wills.
The effect of the decision by the majority in this case, I submit, is to frustrate the testator’s intention, to apply a never-before-used strict construction to a will, and in fact to ignore that the will was drawn by competent lawyers who by no speculation should be considered to have used language except in the manner in which it had been used in instruments in the past and in the decided cases.
Accordingly, I would hold that the Twelfth paragraph in referring to legacies and devises was referring to those that were created by the exercise of the powers of appointment granted in the will. I would also Hold that the further reference to powers of appointment in that paragraph was required in order to make clear that powers, as distinguished from substantive bequests and devises, also could not pass to those who were not of testator’s faith or who married outside testator’s faith.
The decree should be affirmed.
Callahan and Bergan, JJ., concur with Botein, J.; Breitel, J., dissents and votes to affirm, in opinion; Dore, J. P., dissents in the following memorandum: For the reasons stated in the opinion of the learned Surrogate, I vote to affirm.
Decree reversed in accordance with the opinion herein, with costs to the appellant.
*325Republished decision, February 17, 1954
Decree reversed in accordance with the opinion herein, with costs to the appellant. The order of this court, entered February 16, 1954, hereby is vacated. Order filed.
Present — Dore, J. P., Callahan, Breitel, Botein and Bergan, JJ.