Jones v. Webber

187 A.D. 904 | N.Y. App. Div. | 1919

Interlocutory judgment affirmed, with costs, with leave to demurring defendants to answer within twenty days upon payment of costs. The money claimed by plaintiff was not the property of Charles F. Webber, the life beneficiary. He had a life estate with power of appointment, and the property passes to the appointee under the original trust deed creating the power, and not under the power itself. Upon the death of Charles the plaintiff and the other appointees became entitled to immediate possession. (Farmers’ Loan & Trust Co. v. Mortimer, 219 N. Y. 290.) Therefore, plaintiff is entitled to payment in the absence of pleading or proof excusing payment by the trustee. The executor of the deceased trustee and the widow and executrix of the life tenant are proper parties defendant. Jenks, P. J., Mills, Putnam, Kelly and Jaycox, JJ., concurred.