166 P. 940 | Or. | 1917
delivered the opinion of the court.
The only question for decision is whether the residuary clause in the will of Philoclea A. Hollister operates as an execution of the power which the will of William Henry Hollister conferred upon Philoclea A.
In the absence of statutes, the rules of the common law relating to the execution of powers are followed in most of the jurisdictions in this country, although as early as 1863, the courts of Massachusetts rejected the common-law doctrine and adopted a rule analogous to the statutory rule found in 1 Viet., C. 26, Section 27, which was enacted in England in 1837, and provides that a general devise of real property of the testator should be construed to include all real estate over which such testator may have had a power of appointment, and should operate as the execution of such power, unless a contrary intention should appear by the will, and that a general bequest of the personal property of the testator should be construed to include all the per
“Lands embraced in a power to devise, shall pass by a will purporting to convey all the real property of the testator, unless the intent that the will shall not operate as an execution of the power, shall appear, expressly or by necessary implication.”
Although the statute was in terms only applicable to real estate the courts of New York reasoned by analogy and adopted a like rule to be applied to general bequests of personal property. The doctrine adopted by the courts with reference to personalty was approved by the legislature of New York in 1897, when it enacted a statute which reads thus:
“Personal property embraced in a power to bequeath, passes by a will purporting to pass all the personal property of the testator; unless the intent, that the will shall not operate as an execution of the power, appears therein either expressly or by necessary implication”: Vol. 1, Ch. 417, Section 6, Laws of 1897 of New York.
“Whether viewed with reference to the judicial rule which prevailed in New York even before the existence of a statute including personalty, or with reference to the statutory rule of 1897, the residuary clause in the will of Philoclea A. Hollister operated as an execution of the power conferred upon her, unless it can be said that an- intent not to execute the power appears in her will “either expressly or by necessary implication.” The will does not in terms express an intent not to execute the power; nor, on the authority of Lockwood v. Mildeberger, 159 N. Y. 181, 186 (53 N. E. 803), is such an intent necessarily implied, for it is there stated that:
“Necessary implication results only where the will permits of no other interpretation. Necessary is de*324 fined to mean: ‘Such as must be’; ‘Impossible to be otherwise’; ‘Not to be avoided’; ‘Inevitable.’ The intent not to execute the power, therefore, must not be implied unless it so clearly appears that it is not to be avoided.”
Applying the law of New York, as enacted by the legislature and as construed by the courts of that state, to the residuary clause appearing in the will of Philoclea A. Hollister, the inevitable conclusion is that the residuary clause executed the power; and, therefore, Frederick Hollister was entitled to receive the principal of the trust fund from the trustee: Hirsch v. Bucki, 162 App. Div. 659 (148 N. Y. Supp. 214); Mott v. Ackerman, 92 N. Y. 539; New York Life Ins. & T. Co. v. Livingston, 133 N. Y. 125 (30 N. E. 724); Cutting v. Cutting, 86 N. Y. 522; In re Mayo’s Will, 76 Misc. Rep. 416 (136 N. Y. Supp. 1066); Hutton v. Benkard, 92 N. Y. 295; McLean v. McLean, 174 App. Div. 152 (160 N. Y. Supp. 949). The decree of the Circuit Court is affirmed. Affirmed.