4 N.Y.2d 326 | NY | 1958
The proceeding is for judicial settlement of an intermediate account of the trustee of a living trust made by Albert L. Deane in 1932. The accounting bank asked also for a construction of the will of Claire Courteol Deane to determine whether Mrs. Deane, the former wife of the trust’s settlor, had in that will exercised the power of appointment granted to her by the trust agreement. The trust corpus of which that testatrix was during her lifetime the income beneficiary consists of personal property and the question of law is as to whether the will, which did not mention the power of appointment at all, constituted an exercise of that power. Section 18 of the Personal
The appellants here, in addition to the trustee of the inter vivos trust, are the only child of the testatrix and her sister who together would, in default of the exercise of the power of appointment, have taken the whole of the trust corpus (two thirds to the son, one third to the sister). The respondent is a special guardian representing Mrs. Deane’s sole legatee who was her infant grandson and the only child of her only son.
At the time of the making of the living trust the settlor Albert L. Deane (who was then the husband of our testatrix Mrs. Deane but was divorced in 1942 and who is living and since the death of Mrs. Deane the income beneficiary of the living trust) was a resident of Westchester County in this State. The trust agreement provides that the validity of the construction of the trust identure shall be determined by the laws of the State of New York. Appellants attempt to argue that the will of
This will of Mrs. Deane does make further provisions as to disposition of the estate in case the grandson should not be living at the death of testatrix but, of course, these alternative provisions never came into effect. The will further appoints Lyttleton Deane, the son of testatrix and father of the infant beneficiary of the will, as the sole executor with provisions for
Appellants would have us say that the evidence here conclu- . sively rebuts the presumption of section 18 that an exercise of the power of appointment was intended. But the evidence to which appellants refer and which was admitted at the trial over objection of respondent and partly stricken out afterwards was not admissible at all since under section 18 the presumption of that statute may be rebutted only by the express language or the necessary implication of the express language of the will itself. No case in this court holds otherwise and in view of the plain language of the statute there could hardly be a contrary holding. The only real reliance of appellants in this connection is Chase Nat. Bank v. Chicago Tit. & Trust Co. (271 N. Y. 602). In that case there was a long opinion by the Referee (155 Misc. 61) which discussed outside evidence of intent but that outside evidence should not have been considered and had no effect on the result in our court. The McCormick will involved in that Chase National Bank case (supra) was just like the will we are considering here in that it did not refer at all to the trust instrument or the power of appointment or the trust property but made general bequests only (see description of that will at 246 App. Div. 203).
On the trial of this case, over the objection of respondent, the court took evidence which was undisputed of the close and affectionate relationship between testatrix and her son. It was proven that this will was made in Texas where testatrix was visiting the residence of her son and his wife who were of no large financial means and to whom testatrix had been in the habit of giving generous financial assistance. The trial court took, also, testimony from the Texas attorney who had drawn the will. This attorney testified that testatrix came to his office with her son and daughter-in-law, that the attorney asked her what her estate consisted of and she replied that it amounted to $50,000 to $60,000 (which would not include the trust corpus of some $800,000). During the conversation of testatrix with this attorney, at which conversation her son and daughter-in-law were present, the testatrix mentioned that
Chief Judge Conway and Judges Dye, Fold, Froessel, Van Voorhis and Burke concur.
Order affirmed.