FITZGERALD, S.
The report of the appraiser herein has been filed and an order is now presented by the attorney for the executors, fixing the tax in accordance with his findings. By the provisions of his will the testator gave his residuary estate to his executors in trust to pay the net income thereof to his wife during the term of her life. Upon her death, after numerous bequests of specific sums of money, the remainder was bequeathed to a nephew. By a codicil to his will, after reciting the provision for a nephew. By a codicil to his will, after reciting the provisions for the benefit of his widow, he gives to his wife a power to appoint out of the remainder the sum of $150,000 to any descendant or descendants of testator's father, in such proportions as she may see fit. In case she shall not exercise this power of appointment, then the estate is to be distributed as if the codicil had not been executed. Before the appraiser no reference was made to this codicil and the power given thereunder. The appraiser reports the value of the remainder interest in the residuary estate after the death of the wife at the full sum, undiminished by the fund set apart by the codicil, and over which the widow is given a power of appointment. Section 220 of the Tax Law provides expressly for the taxation of property passing by virtue of the exercise of such a power, as well as where it passes by reason of a failure to appoint. The remainder interest over which this power is given must, therefore, be deducted from the share passing to the nephew, and the value of his interest calculated with reference to the provisions of the codicil. See Matter of Seaver, 63 A.D. 284; S.C., 71 N.Y.S. 544. An order may be submitted remitting the proceeding to the appraiser to report in accordance with this memorandum.
Decreed accordingly.