136 Misc. 688 | N.Y. Sur. Ct. | 1930
This application involves a construction of the will of testatrix to determine whether or not she properly exercised a power of appointment. That power was created for her in a deed of trust executed by her son, Charles W. Crosby. At the time of the execution of the deed he was a resident of New York. By the deed of trust he conveyed certain personal property to the Title Guarantee and Trust Company of this State. Under the trust deed Isabel A. Crosby was given the net income from the property
I regret extremely that I am compelled to hold that the Surrogate’s Court has no ’ jurisdiction to determine the questions involved here. That court has jurisdiction only of testamentary trusts (Surr. Ct. Act, § 171). The nature of this limited jurisdiction is emphasized by the decision in People ex rel. Safford v. Surrogate’s Court of the County of Genesee (229 N. Y. 495). It has no jurisdiction over inter vivas trusts. Nor has it any jurisdiction over a trust created by a deed, which is further subject to a power of appointment by will. The legal effect of the will of the testatrix, and the question whether it does or does not properly appoint the trust property, must be passed upon by the Supreme Court. The validity and effect of an instrument, whether will or. deed, which purports to exercise a power of appointment, must be determined in the court which has jurisdiction to construe the instrument originally creating the power. (Matter of Harriman, 124 Misc. 320; affd. on opinion below, 217 App. Div. 733, and the cases cited therein; Matter of Trowbridge, 124 Misc. 317; Matter of N. Y. Life Insurance & Trust Co. [Estate of Hallgarten], 139 N. Y. Supp. 695; affd., 157 App. Div. 916; 209 N. Y. 585.) The statement of the Court of Appeals in a per curiam opinion in the last case is pertinent, for the court held that the construction and effect of the will of the donee “ in so far as it involved an exercise of the power of appointment conferred by the will of her father, is governed by the law of this State, the domicile of the donor of the power, and the situs of the property.” If the power of appointment here had been created by a will admitted to probate in this court, there would be no question about our power to construe the donee’s will, wherever admitted, as an exercise of the power. The property which is the subject of this proceeding passes under the deed of trust executed by the settlor. This court has no jurisdiction over it. To determine the validity of the appointment, the will of the donee of the power must be read into the instrument by which the power was granted. (Genet v. Hunt, 113 N. Y. 158; Fargo v. Squiers, 154 N. Y. 250, 259.) But, if the appointment is valid, the fund passes directly from the trustee named in the deed, to the appointees. (Matter of Canda, 197 App. Div. 597, 602.)
I am unable to agree with the theory of the distinguished counsel that section 40 of the Surrogate’s Court Act, with its comprehensive
Submit decree on notice accordingly.