172 A.D. 353 | N.Y. App. Div. | 1916
Judgment affirmed, with costs, on opinion of Greenbaum, J.
Present—Clarke, P. J., McLaughlin, Laughlin, Scott and Page, JJ.
The following is the opinion of the court below:
This action involves the construction of the will of JohnD. Cheever, deceased. The assets of the estate consist of personal property only. The questions presented arise out of the opposing contentions of the plaintiff, the widow of the testator, and the defendant Gertrude Cheever Porter, daughter and only child of the testator by his first wife, both beneficiaries under the trusts created by the will. It appears that on June 21, 1884, the testator’s father executed a trust deed, under which the testator became the life beneficiary of the income of a certain block of corporate stock. The trust deed conferred a power of appointment upon the testator in the following terms: f “To pay-over and divide the said two hundred and fifty shares j of stock, or the proceeds thereof, to and among such person or
On January 4, 1904, testator’s mother, Anna D. .Cheever, also executed a trust deed, by which she created a trust fund of a certain number of shares of stock, the income to be paid to her son for life, with power of appointment to him in the following terms: “To pay over or divide the said shares of stock, or the proceeds thereof, to or among such person or persoiis_and insuch .proportions as the said John D. Cheever may direct or appoint by a last will and testament, duly proved and admitted to probate, or in default of such specific direction or appointment, then to pay over or deliver the said shares of stock, or the proceeds thereof, to or among the person or persons who would be entitled to take the personal estate of the said John D. Cheever under the laws of the State of Hew York, and in the proportion prescribed by such laws in case he died intestate.”
The will of the decedent in paragraph ‘c Sixth ” thereof gave all the residue and remainder of his estate and all the property of which he had the power of disposition under the two trusts above described to trustees upon certain trusts, thereinafter declared as follows:
“ I direct that one-half of all the profits, interest and income of said trust estate or fund, as the same shall be received by my said trustees, after deducting their expenses, commissions and disbursements, shall, during the life of my daughter, Gertrude G. Cheever, be paid by my said executors and trustees to my said daughter, and the remaining half to be paid to my wife, Ann Cheever, during her life * *
“ Tenth. Upon the death of my said daughter, Gertrude G. Cheever, leaving issue or descendants her surviving, I give, devise and bequeath and direct my said executors and trustees
*356 to divide and distribute .one-half of the entire principal of said trust fund or estate, share and share alike, to and among the said children of my said daughter then living, and to and among the lawful issue of any child or children of my said daughter then dead, per stirpes and not per capita, so that the lawful issue of any dead child shall together receive the share of such deceased child. Eleventh. Upon the death of my said daughter, Gertrude G. Cheever, leaving no issue or descendants her surviving, I will and direct that one-half part of the principal of her share of said trust fund or estate shall be paid and given to such person or persons and in such proportions as my said daughter may direct or appoint by her last will and , testament duly proved, and that all the remainder of her share \of such trust fund or estate, and in default of such direction or ^appointment, the whole thereof, shall be paid and given in the same proportions and to the same persons who would have been entitled to the same in case I had died intestate. Twelfth. Upon the death of my wife, Ann Cheever, leaving a child or children ' of our bodies, or descendants of such child or children her surviving, I give, devise and bequeath one-half of the entire principal of said trust fund or estate, share and share alike, to said child or children of our bodies, then living, and to the lawful issue of any such child or children then dead, per stirpes and not per capita, so that the lawful issue of any dead child shall together receive the share of such dead child. Thirteenth. Upon the death of my said wife, Ann Cheever, leaving .no child or children of our bodies, or descendants of such child or children surviving, I hereby give, devise and bequeath half of the principal of said trust fund or estate to my said daughter, Gertrude G. Cheever, if living, otherwise to her heirs at law.”
Plaintiff contends that these provisions of the will are void, so far as it is sought thereby to exercise the powers of appointment under the trust deeds. It is claimed that the testator had no authority to exercise his powers of appointment by creating . under his will a trust of the property conveyed under the trust deeds and that he had no authority to confer upon his daugh- , ter a power of appointment in respect of such property. It is - further claimed that the attempted exercise of the powers oper- ; ates to suspend the absolute ownership of this property for a
The defendant Gertrude Cheever Porter was born after the execution of her grandfather’s deed of trust and before that of her grandmother’s trust deed. The property covered by the deed of trust of June, 1884, consists of 71 shares of the stock of the Okonite Company and that covered by the deed of trust of January, 1904, of 527 shares of the stock of the same company. The powers of appointment given in each deed of trust are substantially alike, and are general beneficial powers1 under which the grantee was authorized to dispose absolutely ; by will of the property embraced in the trust deeds to any per- \ son whomsoever. (Cutting v. Cutting, 86 N. Y. 522.) In Sugden on Powers (3d Am. ed. p. 535) it is said “that although the power must not be exceeded, nor its directions evaded, yet where there is no prohibition, everything which is legal, and within the limits of the authority should be supported; and therefore that a power to appoint a fee, but with no prohibition against giving a less estate, ought to be held to authorize any legal limitations within the scope of the power which may be served out of the fee. ”
In Butler v. Huestis (68 Ill. 594) it is said: “The law seems tobe well settled.by authority, where a party has the power to appoint a fee, if there are no words of positive restriction a less estate may be appointed.”
The same principle is laid down in Beardsley v. Hotchkiss (96 N. Y. 201, 218, 219) and Matter of Lawrence's Estate (136 Penn. St. 354). The arguments of the learned counsel for the | plaintiff are applicable to limited or special powers. It follows! that the powers of appointment were validly exercised by the creation of the trusts under the will of John D. Cheever. Coming now to the consideration of the trust provisions of the will, it is evident that they must be held valid if two distinct trusts were created thereunder, one during the life of the plaintiff and the other during the life of Mrs. Porter, and if no portion of the property appointed by the decedent’s will under the deed of trust created by decedent’s father is necessarily embraced within the trust measured by the life of Mrs. Porter. The will \
Judgment accordingly.
See Consol. Laws, chap. 41 (Laws of 1909, chap. 45), § 11. See, also, Pers. Prop. Law (Gen. Laws, chap. 47; Laws of 1897, chap. 417), § 2; IE. S. 773, §§ 1, 2.-[Rep.
