There is no dispute in the court that the exercise of the power of appointment contained in the specific bequests is invalid, and that, being invalid, their provisions offer no opportunity for judicial surgery such as may save the bequests, including the gift over after the deaths of the two nieces. The point of disagreement in the court arises only in the effort to accomplish the equivalent of judicial surgery by reading the residuary clause, not in accordance with its language, but in purported construction of the intention of the testatrix, as constituting an alternative exercise of the power of appointment.
When courts indulge in the subtle process of surgery to save gifts affected by the two-life rule, the limitations on that process are distinct and restrictive (Personal Property Law, § 11; e.g.: *375Kalish v. Kalish, 166 N. Y. 368; Matter of Lyons, 271 N. Y. 204; Matter of Eveland, 284 N. Y. 64; Matter of Phillipson, 4 A D 2d 245, affd. 5 N Y 2d 920). Obviously, the same narrow restrictive limitations upon the power of the court apply equally in construing any other part of the will in the effort to overcome the invalidity effected by the statute.
Looking to the residuary clause in this will, it states in so many words that it is not applicable to ‘ ‘ property otherwise disposed of by this * * Will or any Codicil ”. No permissible construction can make this mean that the provision applies only to property of which valid, as distinct from invalid, disposition has been made by the will. Consequently, I cannot agree that the residuary clause can be converted to .save the gift over in remainder after striking down the exercise of the power in the specific bequests because it violates the statute.
There is even a greater difficulty in the case. It is hazardous to assume, as the court seemingly does, that the primary object of the testatrix’ bounty is the named charity. It may not be readily assumed that the gifts of life income from the trust fund to the two nieces were relatively unimportant parts of the testamentary plan and that the testatrix’ intent may be substantially carried out by an immediate payment from the trust fund to the charity.
The life income provisions made substantial gifts to the only relatives named in the will, although there were many nieces, nephews, and children of deceased nieces and nephews. Moreover, prior to the 1954 codicil the will had provided for payment of an annuity to one of the nieces, and the codicil was written primarily to provide a life income for both nieces. This may well indicate that the nieces, at least by 1954, were the primary objects of the testatrix’ bounty. After, but only after, they should die the charity was the sole object of her bounty. It is not unusual for a person late in life, for kindnesses received or out of sentiment, to suffer a major shift in attitude towards one’s relatives. So too, might the parent of an only child be concerned with provisions for the lifetime of such an only child and thereafter care less concerning the disposition of the remainder. On the other hand, in another case a life income may be attached as a secondary matter to a substantial gift-in fee, the donee of which is not seriously affected by a short postponement of the income. In this case I find no language or circumstances which suggest one motivation rather than another. Hence, there is more than the usual reason to adhere to the testamentary language without tampering.
*376It is often true that a testator’s intention may be pursued thus far and no further. So, in a parallel case involving, however, gift by implication rather than attempted judicial surgery to save gifts affected by the two-life rule, it was said by the Court of Appeals: “ This will differs from those in the various cases cited by the Surrogate in his opinion, in all of which cited cases the people to whom legacies by implication were declared were those who from the whole tenor of the will were in all possibility the ones to whom the testator wanted his estate to go in certain contingencies. In othér words, in those cases one could discover a group of people to whom as a group the testator limited his beneficence. * * * Judge Q-bay was writing about a case like the present one where the testator neglected to make a provision in the event of his sister and his brother failing to survive him. This court said in the Hoffman [201 N. Y. 247] case (p. 256): ‘ This is not a case where the presumption against intestacy is available; it is simply the case of a contingency not provided for and whose happening has left, portions of the residuary estate undisposed of.’ That is answer enough, we think, to the argument of respondents in this case that the presumption against intestacy is so strong that we should conjure up a legacy by implication.” (Matter of Englis, 2 N Y 2d 395, 403-404.)
Accordingly, I dissent in part and vote to modify the order to direct that the trustee distribute the fund as in the case of intestacy, as provided in the trust agreement, upon a failure to exercise the power of appointment.
Botein, P. J., Valente and McNally, JJ., concur with Stevens, J.; Bbeitel, J., dissents in part in opinion.
Order entered on October 9,1959, judicially settling the account of the petitioner as trustee, modified on the law, with costs to all parties filing briefs, payable out of the fund, to the extent of holding that the power of appointment was not properly exercised in the first codicil of her will; that the power of appointment was effectively exercised in the residuary clause of the will, and that the petitioner-respondent be directed to distribute the balance of the trust fund remaining after proper disbursements are made to the Midland Bank Executor and Trustee Company Limited to hold in accordance with the residuary clause of the will. Settle order on notice.