Opinion
July, 1931.
Interlocutory decree of the Surrogate's Court of Nassau county, in so far as it holds valid the bequest in trust contained in paragraph 6 of the will of Herman Rausch, reversed upon the law, with costs, payable out of the estate, to each party filing a brief; and the said provision, in so far as it attempts incorporation of a certain trust agreement is invalid and the testator shall be deemed to have died intestate as to the property involved therein. The trust agreement is concededly testamentary in character. The incorporation, by reference, of unattested documents testamentary in character is not permitted under the New York rule. ( Matter of Andrews, 162 N.Y. 1, 4; Matter of Emmons, 110 App. Div. 701, 703; Booth v. Baptist Church, 126 N.Y. 215.) Matter of Fowles ( 222 N.Y. 222) is not to the contrary. The decision in that case is to be confined to its particular facts, which may be differentiated from those involved herein, and may be limited to the doctrine of the propriety of an exercise of power ratified and adopted in advance expressly to avoid a lapse in conformity with Matter of Piffard ( 111 N.Y. 410). Lazansky, P.J., Hagarty, Carswell, Tompkins and Davis, JJ., concur. [ 143 Misc. 101.]