Benjamin N. Cardozo

“ A mere donee of a power is not the owner of an estate, nor to be classed as a juristic entity to which a loss can be attributed. We think, however, that what passed to the executors was ownership or title. True the will does not say in so many words that the residuary estate is given or devised to them, but the absence of such words is of no controlling significance when a gift or devise is the appropriate and normal medium for the attainment of purposes explicitly declared. ”

“ Nothing less than ownership will supply that medium here. The executors are charged with active and continuing duties not susceptible of fulfillment without possession and dominion. They are to collect the income and pay it over in semiannual installments after deducting the expenses. They are to 'hold and manage' the estate with full discretionary powers. They are even at liberty to convey it to a corporation if they believe that efficient administration will thereby be promoted. ”

“ After allowance for depreciation, the loss to the estate by reason of this sale was $113,300. The executors were at liberty to distribute the entire proceeds ($165,000) among the residuary legatees if their judgment moved them to that course. They did not do so. They distributed only $50,000, and held the balance in the trust. One-fifth of the part distributed belonged and was paid to Richard T. Wilson, Jr. One-fifth of the part retained was held for his use as it had been before the sale.
The present controversy grows out of a tax return of income for 1922. ”

“ Under reiterated judgments of the highest court of New York, they are more than the donees of a power. They are the repositories of title. Morse v. Morse, 85 N.Y. 53; Robert v. Corning, N.E. 373; Mee v. ”