221 Mass. 571 | Mass. | 1915
Francis Skinner, by the eleventh clause in his
The trustees under the will of the donor Eliza B. Sldnner admit that under the general inheritance tax law this tax ordinarily would be payable out of the trust fund itself. See St. 1909, c. 490, Part IV, § 9; and § 1, as amended by St. 1912, c. 678, § 1; Minot v. Treasurer & Receiver General, 207 Mass. 588. They contend, however, that the testator Francis placed the burden of the tax on. the residuary of his estate by the thirteenth clause of his will, which reads as follows: “I wish all the legacies hereinbefore given to be paid in full to the various legatees without deduction for legacy taxes and succession dues, which taxes or dues shall be charged to the residue of my estate.”
In ascertaining the testator’s intention as to the scope of the word “legacies” in this clause, it is important to consider the nature of the power by the exercise of which this fund passed. The donee, Francis, did not have a right to appoint to whomsoever he pleased. He had no suóh absolute control of the fund as he had of the property owned by himself. It is physically, as it has been, in the hands of the trustees under the will of his mother, and not in the hands of the executors of his will. He had only a life interest in this fund; and as the donee of the power he was restricted to appointing the property to the beneficiaries designated in the instrument creating the power, namely, the issue of the father and mother of the donor Eliza B. Skinner. In short, it was not a general power of appointment but only a special and limited one. Its exercise would not be accurately described as a “legacy.”
That the testator did not regard the exercise of the power over this property as a legacy, but rather intended to limit that word to the disposition of the property of which he had absolute ownership and control, seems indicated with reasonable certainty by
The case of Isham v. New York Association for the Poor, 177 N. Y. 218, relied on by the defendants, is plainly distinguishable. There the power was a general one and the court said: “The effect of conferring a general power of appointment is to invest its donee with a power of disposition as broad as though she was disposing of her own property. In the exercise she, in fact, makes a gift, or bequest, to persons of her own selection.” Further, the testatrix used the words “I give and bequeath,” and it was held that she evidently supposed that she had made a gift or legacy in exercising the power.
The case at bar is somewhat close, but as a question of interpretation we are of opinion that the testator did not intend to include in the word “legacies,” in the thirteenth clause of his will, the property passing under the special power of appointment. Accordingly the decree of the Probate Court should be affirmed; and it is
So ordered.