322 Mass. 362 | Mass. | 1948
The petitioner as trustee under article Eighth of the will of Costello C. Converse, late of Boston, seeks the instruction of the court as to whether a testamentary power of appointment given in that article to Ellison Converse Boggs, otherwise known as Ellison Boggs, late of Miami Beach, Florida, was duly exercised by a residuary clause in the will of said Ellison Converse Boggs.
The question is to be determined by the law of this Commonwealth, where the creator of the trust and of the power was domiciled, and not by the law of Florida where the donee of the power was domiciled. Sewall v. Wilmer, 132 Mass. 131, 135-138. Boston Safe Deposit & Trust Co. v. Prindle, 290 Mass. 577, 581. Pitman v. Pitman, 314 Mass. 465, 470.
By article Eighth of his will Costello C. Converse left to the petitioner the sum of $100,000 in trust to pay the net income to his niece Emma C. Boggs during her life and
Emma C. Boggs, the original life beneficiary under article Eighth, survived her son Ellison Converse Boggs, who was named as succeeding life beneficiary, and died in 1944. Ellison Converse Boggs died in 1940. In 1935 he made the will, the residuary clause in which is contended to be an exercise of the power given him under article Eighth of the will of Costello C. Converse. In 1935 Ellison Converse Boggs was the life beneficiary of another trust, also originally of $100,000, of which the petitioner was trustee. This last mentioned trust had been created by Costello C. Converse by indenture executed in his lifetime in 1929. By its terms Ellison Converse Boggs had a general testamentary power of appointment of the principal.
The will of Ellison Converse Boggs, executed in 1935, and admitted to probate after his death in 1940, contained in article First a provision for the payment of his debts and funeral expenses. The first sentence of article Second read, “I give, devise and bequeath all of the rest, residue and remainder of my property of whatsoever kind and nature of which I shall die seized and possessed or may thereafter become a part of my estate unto my wife Edna Eckley Boggs if she be living at the time of my death.” In the second sentence of this article the testator expressly exercised in favor of his wife the power of appointment which was his under the indenture of 1929. He made reference to that indenture and provided that his wife might elect whether she should take the entire balance remaining in the trust or should accept payments therefrom in the
The Probate Court held that the residuary clause in article Second of the will of Ellison Converse Boggs was an effective exercise in favor of his wife of his power of appointment of the principal of the trust under article Eighth of the will of Costello C. Converse. Parties who would be interested under article Ninth of that will in default of a valid appointment under article Eighth appeal.
If this case were to be decided upon the theory that in order to exercise the power under article Eighth of the will of Costello C. Converse it was necessary for Ellison Converse Boggs to insert in bis will some reference to that power and some expression of his intent to exercise it, we should of course be required to hold that the power had not been exercised. But in Amory v. Meredith, 7 Allen, 397, this court deliberately and for reasons considered sufficient departed from that theory, which was in substance the theory generally held, and adopted instead the rule of construction previously established by statute in England that “a general devise of real or personal estate . . . should operate as an execution of a power of the testator over the same, unless a contrary intention should appear on the will.” 7 Allen, at page 400. The court took this step because it was of opinion that the rule generally prevailing is "likely, in a majority of cases, to defeat the intention it is designed to ascertain and effectuate.” 7 Allen,' at page. 400. It is true that in Amory v. Meredith mention was made of the fact that the donee of the power had previously owned the property in question and had the beneficial use of it as well as the power of disposal — facts which are absent in the
This canon of construction is a recognition of the fact that a general power of appointment which may be exercised in favor of the donee or his estate is a close approximation to a property interest (Garfield v. State Street Trust
We do not discover sufficiently substantial reasons in this case. The facts that the donee of the power had not at any time owned the property or actually enjoyed the income from it do not appear to us of great significance. When he made his will in 1935 he might, so far as appears, reasonably have expected in the course of nature to survive his mother and to enjoy the income. The chief difficulty arises from the fact that in the same article Second of the will of Ellison Converse Boggs which contains the residuary clause in favor of his wife there appears an express exercise in her favor of the testator’s power under the indenture of 1929, but there is no express mention of the power under article Eighth of the will of Costello C. Converse. There was, however, some reason for special mention of the power under the indenture in that Boggs, as he states in his will, desired his wife to have an option either to take the entire balance of the principal of the trust fund created by the indenture or to accept payments from time to time as they had previously been made to him. In Boston Safe Deposit & Trust Co. v.
We have carefully examined the entire will of Ellison Converse Boggs. We think that the mention of one power and the failure to mention the other and all the circumstances in this case taken together are not' enough to indicate
Costs and expenses of this appeal are to be in the discretion of the Probate Court.
Decree affirmed.
Cumston v. Bartlett, 149 Mass. 243, 248. Hassam v. Hazen, 156 Mass. 93. Fiske v. Fiske, 173 Mass. 413, 418. Stone v. Forbes, 189 Mass. 163, 168, 169. Tudor v. Vail, 195 Mass. 18, 26. Thompson v. Pew, 214 Mass. 520, 523. Russell v. Joys, 227 Mass. 263, 267. Shattuck v. Burrage, 229 Mass. 448, 450. Ames v. Ames, 238 Mass. 270, 275. King v. Walsh, 250 Mass. 462, 466. Harvard Trust Co. v. Frost, 258 Mass. 319, 322. Butler v. New England Trust Co. 259 Mass. 39, 44. Worcester Bank & Trust Co. v. Sibley, 287 Mass. 594, 598. Boston Safe Deposit & Trust Co. v. Prindle, 290 Mass. 577, 581. Slayton v. Fitch Home, Inc. 293 Mass. 574, 578. Old Colony Trust Co. v. Allen, 307 Mass. 40. Gorey v. Guarente, 303 Mass. 569, 575. Pitman v. Pitman, 314 Mass. 465, 474.