| N.J. | Jun 15, 1883
The opinion of the court was delivered by
Caleb H. Camp, by his last will and testament, admitted to probate in Essex county on the 19th of March, 1872, among other things, devised and bequeathed as follows:
“ I also give and bequeath to my said wife (Experience Camp) the use of my house and lot, and all other real estate of which I may die seized, and the interest and income of all the residue of my personal estate for and during her natural life, or so long as she remains my widow.
“ Upon the death or marriage of my wife I give and bequeath to my daughter, Mary Ann Baldwin, wife of Harris M. Baldwin, the use of all my real estate aforesaid, and the interest and income of all the residue of my personal estate aforesaid, -to use, occupy and possess the said real estate, or to receive the rents and profits thereof, and the interest and income of said personal estate for her own use, and upon her own receipts and subject to her own control during her life; I do further hereby authorize and empower my said daughter absolutely to dispose of all the said real and personal estate that may remain at the time of her death, by her last will and testament or an instrument in writing in the nature thereof, signed in the presence of two witnesses, and in case she shall die without executing such will or instrument in writing in the nature thereof, then I do give and bequeath the said real and personal estate to the child or children of my said daughter, if any she shall have, their heirs and assigns, and in case she shall have no child or children, then I give and bequeath the same to my own right heirs and next of kin, to be divided and distributed according to the laws of this state.”
Mary Ann Baldwin died in June, 1881, having, by her last will and testament, executed in due form, exercised the power of appointment conferred upon her by her father’s will.
The first question in the cause is, whether the power of ¡appointment given to Mary A. Baldwin by the will of her father, vested immediately on the probate of his will, so that she could make a valid exercise of it before her mother’s death.
In Countess of Sutherland v. Northmore, 1 Dick. 56, where a feme covert had power, under a marriage settlement, to create a term and raise money after the death of her husband, and being in distress executed that power in the lifetime of her husband, it was held that the power was well executed and effective at his death.
In Dalby v. Pullen, 2 Bing. 144, the testator devised estates to trustees for the use of his daughter for life, remainder to the use of her son in fee, but in case he should die without issue in the lifetime of the daughter, and there should be no other issue of her body then living, then to the use of such persons as she should, by deed or will, appoint; and there being no other issue, the mother and son executed an appointment and conveyance in fee. The power of appointment was held to be well executed by the mother in the lifetime of the son.
In Wandesforde v. Carrick, L. P. (5 Irish Eg.) 486, the rule was declared to be, that where a power is given to a designated person, to be executed uppn a contingency, it may be executed before the happening of the contingency, and it will be valid on the subsequent happening of the event. The two cases above referred to were cited in support of the doctrine.
Ashford v. Cafe, 7 Sim. 641, is to the same effect. There the testator gave a fund to trustees for his sister for life, and after her death in trust to transfer it to his niece, her executors &c., in case she should be then unmarried; but in case she should be then married, in trust to transfer the same to such persons as she, whether sole or married, should by deed or will appoint, and in default of appointment, in trust to pay the dividends to her for her separate use for life, and subject to the trusts aforesaid; the capital to be in trust for her, her executors &c. The niece married after the testator’s death and, during her coverture and in
In Doe v. Tomkinson, 2 M. & S. 165, the exercise of the power by one sister in the lifetime of the other was held to be invalid, where the devise was to sisters and survivor, for life; with power to survivor to devise.
Lord Ellenborough distinguished the case from Sutherland v. Northmore, in that the power there was given to a designated person to be executed upon a contingency; here the power was given to a contingent person, it being uncertain which sister would survive the other.
The rule is correctly stated in these cases, and it must be held that Mary A. Baldwin could well exercise the power in the lifetime of her mother.
There is nothing in the testator’s will to indicate an intention to engraft a limitation upon the power that it shall be contingent upon the survival of Mary. The gift over is made only in the event that she fails to exercise the power in her lifetime, and- not upon the contingency that she shall survive her mother. The testator’s intention clearly was that his daughter should have the absolute power of disposition of his estate subject only to the provision for his wife; that she should at least so far enjoy it as to be permitted to make a testamentary disposition of it.
Caleb H. Camp, by a codicil to his last will and testament, also duly proved, directed that, in case his wife and his said daughter, Mary Ann Baldwin, should agree thereto in writing, his executors should sell and convey all his real estate in fee and invest the proceeds safely, and pay over the interest and income thereof to his wife for and during her natural life or so long as she remained his widow, and upon the death or remarriage of his said wife he gave the. proceeds of said real estate to his daughter Mary Ann, to her own use and subject to her own control.
Under the authority of this codicil certain real estate of which Caleb H. Camp died seized was sold and conveyed in fee in May, 1872, and the proceeds thereof duly invested.
Under this codicil, therefore, Mary Ann Baldwin had a vested' estate in the proceeds of the sale of these lands subject to her mother’s fight to the interest for life.
By a codicil to her last will and testament, dated June 16th, 1881, she provides as follows:
“In pursuance of the power and authority given to me, in and by the last will of my father, Caleb H. Camp, to dispose absolutely of all the property, real and personal, which I am entitled to use after the death of my mother, and whereof my mother, Experience Camp, now has the use, I do hereby, by this codicil to my last will, dispose of in manner following : I give and bequeath unto my said cousin, Emma Davey, wife of Joseph Da,vey, the sum of $500, and to my cousin, Ann Camp, the sum of $500, said sums to be paid out of the said property in and by my father’s said will given to my mother to-use during her life, and to me to use after her death, and to dispose of by my will. All the rest and residue of the said property so bequeathed and devised as aforesaid, by my father’s will, I give, devise and bequeath to the trustees of the First Christian Church of Irvington.” [Sow known by the name of the First Christian Society in Camptown].
By this language she exercised not only the power of appointment under her father’s will, but also her own power of testamentary disposition. She passed the property which she held in her own' right under the codicil to her father’s will, as well as that over which she had the power of appointment. The language of the codicil to her will is:
“ All the rest and residue of the said property so bequeathed and devised as aforesaid by my father’s will.” [Which embraces everything of which her mother had the use for life].
A testator may, by the same clause, dispose of his own property
The only remaining question is whether the executors of Mary A. Baldwin, the appointee under Caleb H. Camp’s will, or the administrator de bonis non of Caleb H. Camp, shall execute the appointment made by Mary A. Baldwin.
The fund which Mary Ann Baldwin .disposed of under the power of appointment contained in her father’s will is properly in the hands of his administrator de bonis non, and can, in pursuance of his will, be paid only to such person or persons.-as the said Mary Ann shall appoint. By her will she has not appointed her executors to receive and disburse this fund, but has bequeathed it to certain specified persons—that is to say, to Emma Davey and Ann Camp—each the sum of $500 and the balance to the respondent, to whom it is the duty of Caleb H. Camp’s personal representative to pay it, and thereby to execute the appointment.
The cases relied upon to maintain the right of Mary A. Baldwin’s executors to receive this fund are not in point.
In Cowx v. Foster, 1 Johns, & H. 30, the fund was directed to be paid to the trustees, to whom the person who had the right to exercise the power expressly gave it.
So in Ferrier v. Jay, L. R. (10 Eq.) 550, a daughter who, by her father’s will, had a power of appointment, gave her portion to trustees for certain objects in her will specified, and the vice-chancellor properly directed that the fund should be paid to the trustees under the daughter’s will.
If Mary Ann Baldwin had in her will appointed trustees to receive the fund and distribute it among specified objects, they would have been entitled to receive and dispose of it.
The proceeds of the sale of the real estate, which vested absolutely in Mary A. Baldwin under the codicil to the will of her father, pass, by her will, into the hands of her executors. The fund which she disposes of under the power must be paid by the personal representative of Caleb H. Camp to the beneficia
Decree manimously affirmed.