206 Mass. 289 | Mass. | 1910
The provisions made by Eugene Lynch in his will for the benefit of his wife lapsed and became of no effect by reason of her decease in his lifetime. She was not a “ relation of the testator ” within the meaning of those words in R. L. c. 135, § 21. Esty v. Clark, 101 Mass. 36. Kimball v. Story, 108 Mass. 382, 385. Horton v. Earle, 162 Mass. 448. And the power of appointment given to her fell with the life estate which preceded it. That power did not and could not come into existence until the death of Lynch himself. And as his wife, the only person who could have exercised the power, was dead before that time, the power itself never came into existence. It is as if no such power had been created by the will of Lynch. Jones v. Southall, 32 Beav. 31. Griggs v. Gibson, 35 L. J. (N. S.) Ch. 458. Sharpe v. M’Call, [1903] 1 Ir. 179.
If we assume that the language of Mrs. Lynch’s will could be regarded as an exercise of the power which she would have had under her husband’s will if she had survived him, then we may also assume that the mere fact of her appointment having preceded the creation of the power under which it was made would not have prevented it from taking effect. Stone v. Forbes, 189 Mass. 163, 168. Osgood v. Bliss, 141 Mass. 474, 476, 477. Willard v. Ware, 10 Allen, 263. Boyes v. Cook, 14 Ch. D. 53. Airey v. Bower, 12 App. Cas. 263. But the difficulty here is not a mere question of time ; it goes deeper than that. Mrs. Lynch never enjoyed a power of appointment at all. In all the cases above referred to the power was vested in its donee when his appointment took effect. But here there could be no power in existence until the husband’s death, and there never was a time when Mrs. Lynch had any such power vested in her. It follows that any attempted appointment by her was a mere nullity.
But it has been. contended that Eugene Lynch adopted the provisions of his wife’s will and by reference incorporated them into his own will. Dexter v. Harvard College, 176 Mass. 192. Allen v. Boomer, 82 Wis. 364. Goods of Limerick, 2 Rob. Eccl. 313. Undoubtedly he might have done so, as it appears that
In accordance with the terms of the report, a decree is to be entered instructing the petitioners that Mrs. Lynch took no valid power of appointment under the will of her husband, and did not by her will make a valid appointment of any part of his estate, and that her nephews and nieces do not under his and her wills take any interest in his estate, but that the part of his
So ordered.