124 Misc. 317 | N.Y. Sur. Ct. | 1924
In this accounting proceeding, the special guardian reports that the power of appointment created by the will of the decedent, Clement J. Trowbridge, was invalidly exercised by the donee of the power, the testator’s daughter, Mrs. Henriette Olive Trow-bridge Littleton. Clement J. Trowbridge died on the 29th of March, 1886. His will was- admitted to probate by a decree of this court dated April 16, 1886. Under the father’s will Mrs. Littleton was limited to appoint to her descendants in the following language: “ IV. Upon the death of my said daughter, Henriette Olive Trowbridge, leaving lineal descendants her surviving, to I convey, assign, transfer and pay over unto the lineal descendants! of my said daughter her surviving, their heirs, executors, admin-l istrators and assigns forever, in such proportions, equal or unequal! as my said daughter may by her last will and testament direct,! but, if she makes no such direction, then, share and share alike! per stirpes and not per capita, the whole estate and property herein! devised and bequeathed to my said Trustee, * * Mrs! Littleton died on the 12th of July, 1924. By her last will she divide» her residuary estate into four equal shares. One she gave outright! to her husband. Another one-fourth she gave in trust with direc-l tions to pay the net income to her son Frank C. Littleton, Jr.l during his lifetime. Certain discretion was vested in the trustee to pay part of the principal to him after he had reached the age o 1
I hold that her will is absolutely void as an execution of the power of appointment. It clearly appears that she attempted to appoint to her husband and to corporations who were persons outside of the class of “ descendants ” to which she was limited by the donor’s will. Furthermore, it is conceded that both of her children, who are made life beneficiaries of the trusts, were not in being at the date of death of her father, the testator here. The "attempt by her to create additional life estates for persons not in existence at that time is violative of our statute against perpetuities (Pers. Prop. Law, § 11; Real Prop. Law, §§ 42, 178) and was so held in Fargo v. Squiers (154 N. Y. 250), in a will of a donee containing similar provisions. The court said there: “ The validity of the provisions of the will of Georgia Fargo, in so far as she attempted to execute the power of appointment, must, therefore, be tested by reading the provisions of her will into the provisions of the will of William G. Fargo, which created the power. So ested, we find that the Squiers children not being in existence t the time of the death of William G. Fargo, any attempt to post-one the absolute ownership of the property in these children muid be a violation of the provisions of the statute.” (See, also, Genet v. Hunt, 113 N. Y. 158.) Section 177 of the Real Property aw, which provides that a distribution under a power shall not e voided because it is too extensive, has no application here, ince it is impossible to eliminate any portion of the will of the donee "thout destroying the general scheme of disposition. The void states created by Mrs. Littleton’s will are so hopelessly confused "th the other provisions that it is impossible to salvage any part f her testamentary schemes as an exercise of the power of appointent. The alternative provisions of her father’s will must deterle the distribution of the trust fund depending upon the life of rs. Littleton. Her two children are, therefore, entitled, under
Submit decree directing distribution accordingly.