Tenth. Upon the death of my said daughter, Gertrude G. Cheever, leaving issue or descendants her surviving, I give, devise and bequeath and direct my said executors and trustees to divide and distribute one-half of the entire principal of said trust fund or estate, share and share alike, to and among the said children of my said daughter then living, and to and among the lawful issue of any child or children of my said daughter then dead, per stirpes and not per capita, so that the lawful issue of any dead child shall together receive the share of such deceased child.

“Eleventh. Upon the death of my said daughter, Gertrude G. Oheever, leaving no issue or descendants her surviving, I will and direct that one-half part of the principal of her share of said trust fund or estate shall be paid and given to such person or persons and in such proportions as my said daughter may direct or appoint by her last will and testament duly proved, and that' all the remainder of her share of such trust fund or estate, and in default of such direction or appointment, the whole thereof, shall be paid and given in the same proportions and to the same persons who would have been entitled to the same in case I had died intestate.

“Twelfth. Upon the death of my wife, Ann Oheever, leaving a child or children of our bodies, or descendants of such child or children her surviving, I give, devise and bequeath one-half of the entire principal of said trust fund or estate, share and share alike, to said child or children of our bodies, then living, and to the lawful issue of any such child or children then dead, per stirpes and not per capita, so that the lawful issue of any dead child shall together receive the share of such dead child.

“Thirteenth. Upon the death of my said wife, Ann Oheever, leaving no child or children of our bodies, or descendants of such child or children surviving, I hereby give, devise and bequeath half, of the principal of said trust fund or estate to my said daughter, Gertrude G. Oheever, if living, otherwise to her heirs at law.”

Plaintiff: contends that these provisions of the will are void, so far as it is sought thereby to exercise the powers of appointment under the trust deeds. It is claimed that the testator had no authority to exercise his powers of appointment by creating under his will a trust of the property conveyed under the trust deeds and that he had no authority to confer upon his daughter a power of appointment in respect of such property. It is further claimed that the attempted exercise of the powers operates to suspend the absolute ownership of this property for a longer period than during the continuance and until the termination of two lives in being at the time of the creation of the respective powers.

[1, 2] The defendant Gertrude Oheever Porter was born after the execution of her grandfather’s deed of trust and before that of her grandmother’s trust deed. The property covered by the deed of trust of June, 1884, consists of 71 shares of the stock of the Okonite Company and that covered by the deed of trust of January, 1904, of 527 shares of the stock of the same company. The powers of appointment given in each deed of trust are substantially alike, and are general beneficial powers under which the grantee was authorized to dispose absolutely by will of the property embraced in the trust deeds to any person whomsoever. Cutting v. Cutting, 86 N. Y. 522.

In Sugden on Powers (3d Am. Ed.) c. 40, p. 535, it is said “that although the power must not be exceeded, nor its directions evaded, yet where there is no prohibition, everything which is legal and within the limits of the authority should be supported, and therefore that the power to appoint a fee, but with no prohibition against giving a less estate, ought to be held to authorize ■any legal limitation within the scope of the power which may be served out. of the fee.”

In Butler v. Heustis, 68 Ill. 594, 18 Am. Rep. 589, it is said: “The law seems to be well settled by authority, where a party has the power to appoint a fee, if there are no words of positive restriction a less estate may be appointed.” The same principle is laid down in Beardsley v. Hotchkiss, 96 N. Y. 201, 218, 219, and Lawrence’s Estate, 136 Pa. 354, 20 Atl. 521, 11 L. R. A. 85, 20 Am. St. Rep. 925.

The arguments of the learned counsel for the plaintiff are applicable to limited or special powers. It follows that the powers of appointment were validly exercised by the creation of the trusts under the will of John D. Oheever.

[3] Coming now to the consideration of the trust provisions of the will, it is evident that they must be held valid if two distinct trusts were created thereunder, one during the life of the plaintiff and the other during the life of Mrs. Porter, and if no portion of the property appointed bj' the decedent’s will under the deed of trust created by decedent’s father is necessarily embraced within the trust measured by the life of Mrs. Porter. The will in effect provides that the trust property be kept in solido for convenience of investment, the income being given in two equal shares, one to plaintiff and the other to defendant Mrs. Porter, and each half of the principal being liberated upon the death of the life beneficiaries and disposed of in the manner provided in the paragraphs of the will above set forth. The conclusion is therefore irresistible that the intention of the testator was to create separate trusts. Moreover, this case cannot well be distinguished in principle from Leach v. Godwin, 198 N. Y. 35, 91 N. E. 288; Sehermerhom v. Getting, 131 N. Y. 48, 29 N. E. 980.

1.4] Wo may now inquire whether these separate trusts violate section 11 of the Personal Property Law, in that they suspend the absolute ownership of personal property beyond two lives in being at the date when the power was created under the deed of trust of John D. Cheever in 1884. There can be no doubt that, if a portion of the fund to be held in trust for the life of Mrs. Porter under the will consists of property appointed from the trust created by the decedent’s father in 1884, the trust must be declared void, since she was not in being at that date. Fargo v. Squiers, 354 N. Y. 250, 259, 48 N. E. 509. The will, however, does not specifically provide to which beneficiary the property appointed under each power shall go, nor does it apportion the property appointed under each power between the two beneficiaries. It provides that each beneficiary shall receive the income of one-half the entire fund, and that each half of the principal thereof shall be disposed of in the manner heretofore stated. It is not to be assumed that the testator intended to defeat his obvious purpose of establishing two separate trusts by a division which would invalidate them. The shares of stock held in trust under each trust deed can conveniently and readily be apportioned, so that the 71 shares of the John D. Cheever trust will be embraced in the trust created under the will for the benefit of the plaintiff, who was in esse in 1884. This would leave the trust fund for the benefit of Mrs. Porter wholly made up of the shares of stock derived from Anna D. Oheevcr’s trust, which was created in 1004, when Mrs. Porter was in being. Such an apportionment would fall within the spirit of the rule adopted in Fargo v. Squiers, supra.

[5] With respect to the contention that an unlawful suspension may result under the power to appoint to further uses, given under the will to Mrs. Porter, Hie testator’s daughter, it is sufficient to refer to Hillen v. Isclin, 144 N. Y. 365, 39 N. E. 368, which is direct authority for the proposition that such a power does not offend the statute against perpetuities. The power conferred under the will upon Mirs. Porter to appoint to further uses was clearly valid. Frear v. Pugsley, 9 Misc. Rep. 316, 30 N. Y. Supp. 149; Thayer v. Rivers, 179 Mass. 280, 289, 60 N. E. 786 ; 4 Cruise on Real Property (Greenleaf’s Ed.), p. 263; Crooke v. County of Kings, 97 N. Y. 421.

Judgment accordingly.