Judges: Feely
Filed Date: 12/11/1930
Status: Precedential
Modified Date: 10/19/2024
In explanation of the somewhat unusual way in which the property, found m the possession of tMs testatrix at
Testatrix then had in her hands property worth about $100,000, of which only a small part was not her own; that is to say, she then had in her hands $10,000, or its equivalent, which had originally been intrusted to her — without formally appointing her a trustee, properly so called -— by the last will and testament of her brother-in-law, Charles S. Holt, late of Chicago, 111.,— “To hold and invest the same and to use and enjoy the income thereof during her natural life, and to dispose of the principal by will at her death, and failing such disposition, the principal shall fall into my residuary estate.”
This residuary estate has been given by the will- of Mr. C. S. Holt to his widow, Camilla McPherson Holt, a sister of this testatrix. Testator and the husband of this testatrix were each lawyers, who spent their professional life in the city of Chicago, 111. This testatrix also resided there for the greater part of her fife; and had made several last wills in that State; but in her last years she returned to the State of New York and died at the homestead in Monroe county, after having made her last will and testament here, wherein she is described as “of the Town of Wheatland, County of Monroe, and State of New York.” It does not seem necessary now to determine just where she was last domiciled.
In and by said will she provided for the distribution of “ all * * * my property, both real and personal,” without, however, referring expressly to the $10,000 she had in her hands belonging to her brother-in-law’s estate, nor to any intention to exercise thereon the power conferred on her by his will to appoint the ultimate owners thereof upon the cessation of her life use thereof; nor is there any indication she chose any particular jurisdiction as the law for construing her said last will.
Half of her residuary estate is given absolutely by her will to her sister, Mrs. C. M. Holt, the residuary legatee in the will that granted the power; but as this testatrix limits her bounty to her oWn property, it is doubtful whether she actually intended to exercise the power of appointment by" such legacy of half her own residuary estate to her sister.
The law of New York readily resolves such doubt by the statutory declaration that the property under appointment is deemed to pass by reason of the will of the donee of the power purporting to dispose of all of her property, unless it clearly appears she
Surrogate Fowler pointed out to us that, at common law, such will of the donee of the power to appoint would not be regarded as an exercise of the power because of its failure to refer to the power, and of its application to other property than that subject to appointment. (Matter of N. Y. Life Ins. & Trust Co., 139 N. Y. Supp. 695.) In that case also he held that the law of the domicile of the donor of the power, and not that of the donee, determines, in most cases, whether there is sufficient testamentary exercise of the power of appointment. (Id.) TMs decision was affirmed, without opirnon, by the Appellate Division (157 App. Div. 916); and was also affirmed by the Court of Appeals (209 N. Y. 585) in a memorandum wherein the latter court state they follow the ruling in Sewall v. Wilmer (132 Mass. 131). TMs Massachusetts case is based on a state of fact that is quite like the case at bar, except in that there the life beneficiary, with power of testamentary appointment, did not have possession of the principal, wMch always remained the legal property of the trustees of the donor’s will, and in their possession, in trust, to convey over to the appointee of the life beneficiary, and in default of such appointment by her, then over to her cMldren and heirs. Her will gave all her property to her husband, without mentioning the power to appoint she had under her father’s will. Such will under the law of her domicile in Maryland was deemed a failure to exercise the power; but, under the law of the domicile of her father, in Massachusetts, where Ms will was probated, her will was held to
Let the decree of judicial settlement herein be framed in accordance with this decision, and entered.