This is a trustees’ accounting and, as an incident thereto, the Court is required to determine the validity of the exercise of the power of appointment granted in article ‘Eighth’ of the testator’s will to his daughter as appointee.
The testator died May 11, 1933, leaving a will which was admitted to probate. By article ‘Eighth’ he created a trust of a fund, the income of which was to be paid to his daughter during her lifetime and upon her death the principal was to be paid to such persons as she designated by her last will, and should she die intestate, to those persons who at the time of her death shall constitute her next of kin. The residual provision contained in article ‘Eleventh’ of the said will provides for an identical disposition of the portion of said residual fund bequeathed to the daughter.
The daughter died a resident of Kings County on September 9, 1957, and under article ‘Fifth’ of her will she attempted to exercise the power of appointment of the corpus of the trust created for her benefit by dividing the same into as many shares as her son may leave issue living at her death which shares were to be held in trust for their respective lives, the income to be paid them from time to time and upon the death of each beneficiary the principal to their issue or, in default of issue, to the remaining children per stirpes. The children of the testator’s grandson, the only issue of the daughter are four infants, each under fourteen years of age, all of whom were born subsequent to testator’s death.