314 Mass. 465 | Mass. | 1943
This is an appeal from a decree of the Probate Court for Norfolk County, allowing and admitting to probate a certain instrument as the last will of Benjamin Pitman in so far as it is in execution of certain powers of appointment granted to him in the will of Almira Pitman.
Benjamin Pitman, a resident of and domiciled in Stamford, Connecticut, died on February 26, 1942, leaving as his heirs at law and next of kin his wife, Helen, a son, Benjamin Pitman, Jr., and two minor daughters, Diane Therese and Lorraine Marie Pitman. The son was the issue of the marriage of Benjamin Pitman and Harriet Taylor Pitman, and the daughters, of his marriage with Letteria Curcurento Pitman. There were no children by his marriage with Helen Smith Pitman, his widow.
Almira Pitman, the mother of Benjamin Pitman, died on December 17, 1939, a resident of Brookline in this Common
A divorce was granted to Pitman's second wife, in Connecticut, on June 14, 1940. On that date she and Pitman entered into a written agreement in reference to the custody of the two daughters and the payment of alimony. In this agreement he purported to assign to her all his right, title and interest in the trust established for his benefit under article 1 of the first codicil in an amount not in excess of $25,000, and upon the transfer of this property to her he was to be relieved from the further payment of the alimony set forth in the agreement. In the event that she did not receive any of the trust property, he then attempted by the said agreement to appoint the trust property in favor of his two daughters to an amount not in excess of $25,000, and further agreed to exercise the power of appointment in their favor to the said amount by his last will and testament, and reserved the right to appoint the trust fund in excess of
On July 1, 1940, Pitman executed his will. The will contained a provision by which he attempted to exercise the power granted to him under article 1 of the first codicil, by appointing the trust fund, to the extent of $12,500, to each of his daughters, and the balance, if any, to his son. The will recited that the “aforesaid provision is in accord with ... a certain agreement made by me with my former wife . . . dated June 14, 1940, by which I undertook and agreed to assign to my said former wife, by way of alimony, all of my right, title, and interest in and to the trust created under Article I of the codicil of my mother’s will . . . to the value and amount of Twenty-five Thousand (25,000) Dollars, and by the terms of which said agreement I authorized and empowered the trustees appointed under the terms of my mother’s will and codicil to pay over and deliver to my said former wife an amount not in excess of Twenty-five Thousand (25,000) Dollars out of the principal of said trust, and by the terms of which I further undertook to exercise the power of appointment . . . over the remainder of the principal ... in favor of my two children . . . [the daughters] to an amount not in excess of Twenty-five Thousand (25,000) Dollars, provided there had not been transferred and delivered to my said former wife as of the date of my death my interest in said trust to an amount not in excess of Twenty-five Thousand (25,000) Dollars.” Pit-man’s will further provided that if the trustees" under his mother’s will had paid his former wife the amount provided in the said agreement, then he appointed the balance of the trust fund equally to his three children. The residue of his property was given in equal shares to his children. The petitioner and appellee in the instant case, Theodore B. Pitman, was named executor. No question is raised as to the proper execution of this instrument as a will.
Benjamin Pitman married Helen L. Smith on October 2, 1941. The Court of Probate for the county of Fairfield, in the State of Connecticut, entered a decree on April 2,
The domiciliary State having decided that Pitman’s will had been revoked, the first issue now presented for decision is whether the Probate Court of Norfolk County had jurisdiction to admit the instrument to probate in so far as it is in execution of the powers of appointment granted to Pitman under the will of Almira Pitman. The value at the death of Pitman of the property held in trust under the twelfth article of Mrs. Pitman’s will amounted to $17,-150, and of that held in trust under article 1 of the first codicil to her will, $15,800. This property is held by the trustees appointed by the Probate Court of Norfolk County. They are required to administer the trusts in accordance with the will of Mrs. Pitman and are accountable to the
said court for the faithful discharge of their duties. Campbell v. Wallace, 10 Gray, 162. Jenkins v. Lester, 131 Mass. 355. The property over which Pitman had a power of
appointment belonged to the estate of his mother. He possessed only the authority to effectuate the transmission of the appointed property from her estate to those he was empowered by her to name as recipients of her property. A donee does not own the property over which he has a
power of appointment, Harmon v. Weston, 215 Mass. 242; Dexter v. Attorney General, 224 Mass. 215; Hill v. Treasurer & Receiver General, 229 Mass. 474; Minot v. Paine, 230 Mass. 514; Hogarth-Swann v. Weed, 274 Mass. 125,
even though it is considered, in equity, as his when his own estate is insufficient to pay his debts and the appointed property may be used for the benefit of his creditors; and such property has been regarded as a part of his estate for the purpose of taxation, where the taxing statutes so provide, and in permitting the issue of an appointee, who is a relative of the donee within G. L. (Ter. Ed.) c. 191, § 22, to take where the appointee predeceases the donee. Clapp v. Ingraham, 126 Mass. 200. Thompson v. Pew, 214 Mass.
It is settled in this Commonwealth since the leading case of Sewall v. Wilmer, 132 Mass. 131, that the validity of the exercise of a testamentary power of appointment by a nonresident donee, upon whom the power was conferred by the will of a decedent domiciled here at the time the power was created and at the time of his death, must be determined by the law of this Commonwealth. It was said in Hogarth-Swann v. Weed, 274 Mass. 125, 130, by Rugg, C.J., that “An instrument may be invalid as a will according to the law of the domicil of the donee of the power, and yet be upheld in the domicil of the donor of the power as a valid testamentary instrument and thus operative as an exercise of the power of appointment. Sewall v. Wilmer, 132 Mass. 131, 136. Walker v. Treasurer & Receiver General, 221 Mass. 600, 603. Where the power contains the provision that it must be exercised by will and the donee of the power domiciled in another country executes an instrument invalid as a will under the law of his domicil but good as to form and substance in the country of the domicil of the donor of the power, where also is the property to be appointed, it has been held that that instrument must be proved as a will in the courts of the latter country for the purpose of affecting the property to be appointed, though perhaps not for other purposes.” That principle is illustrated in our own decisions by Tudor v. Vail, 195 Mass. 18, Walker v. Treasurer & Receiver General, 221 Mass. 600, Russell v. Joys, 227 Mass. 263, Bundy v. United States Trust Co. 257 Mass. 72, Boston Safe Deposit & Trust Co. v. Prindle, 290 Mass. 577, and in other jurisdictions by Murphy v. Deichler, [1909] A. C. 446, Bartlett v. Sears, 81 Conn. 34, Matter of Sloan’s Estate, 7 Cal. App. (2d) 319, Lane v. Lane, 4 Pennewill (Del.) 368, Ligget v. Fidelity & Columbia Trust Co. 274 Ky. 387, Prince de Bearn v. Winans, 111 Md. 434, David v. Atlantic County Society for Prevention of Cruelty to Animals, 129 N. J. Eq. 501, Matter of New York Life Ins. & Trust Co. 209 N. Y. 585, Chase National Bank v. Chicago Title & Trust Co. 271 N. Y. 602, Lawrence’s Estate, 136
The basis for this general rule is that the property belongs to the donor; that the donee is authorized only to direct the devolution of the appointed property as agent of the donor and that, in order to have the property pass to the appointees, it must be transmitted in accordance with the law of the domicil of the donor. It has at times been said that the donor intended as a matter of inference that the law of his domicil should govern the devolution of his property. Sewall v. Wilmer, 132 Mass. 131. Russell v. Joys, 227 Mass. 263. White v. Holly, 80 Conn. 438. Harlow v. Duryea, 42 R. I. 234. In the present case the donor expressly provided that the principal of each trust was to be paid over among such one or more of the living issue of her mother “in such shares, for such estates, and on such conditions as may be permitted by the laws of the Commonwealth of Massachusetts, as he shall appoint by his last will duly admitted to probate.” It is clear that the validity of the exercise of the powers was intended by the donor to be determined by the laws of this Commonwealth.
The decree of the Court of Probate of Connecticut adjudging that Pitman died intestate did not, by virtue of the full faith and credit clause of the Constitution of the United States, art. 4, § 1, preclude the Probate Court of Norfolk County from determining whether the instrument that Pit-man executed was under our law a valid exercise by him, in accordance with the will of his mother, of a power of appointment over property within the jurisdiction of one of our Probate Courts. The Probate Court of Norfolk County was not concerned with the descent or distribution of property owned by Pitman at the time of his death — see Crippen v. Dexter, 13 Gray, 330 — and the narrow issue presented to that court was not whether the instrument executed by Pitman was a will under the law of Connecticut but whether that instrument was a will within the meaning of the will of his mother, and whether the instrument was the execution of the power to appoint as the term appoint was used by her in creating the power. All that the Probate Court of Norfolk
The Probate Court of Norfolk County having jurisdiction to decide whether Pitman exercised the powers of appointment created by his mother’s will, various grounds are urged by the appellant that the execution of the powers was invalid.
Pitman’s will was refused probate in Connecticut because of his marriage subsequent to the execution of his will. That decision was required by a Connecticut statute (Gen. Sts. [1930] § 4880) which provides that “such marriage . . . shall operate as a revocation of such will.” This statute makes no exception of wills made in contemplation of marriage or of powers of appointment contained in such wills. Our present inquiry is to determine according to our own law the effect of the subsequent marriage of Pitman upon the instrument by which he purported to exercise these powers, and to decide whether that was a valid exercise in accordance with the will of his mother. Our statute, G. L. (Ter. Ed.) c. 191, § 9, provides that a marriage subsequent to the execution of a will revokes the will unless it appears from the will that it was made in contemplation of marriage, but if “the will is made in the exercise of a power of appointment and the real and personal property subject to the appointment would not, without the appointment, pass to the persons who would have been entitled to it if it had been the estate and property of the testator making the appointment and he had died intestate, so much of the will as makes the appointment shall not be revoked by the marriage.” The exception in this statute applies to all powers of appointment other than those where the appointed property, in default of the exercise of the power, would go to those who would take it if it was owned by the donee at the time of his death and he died intestate. Paine v. Price, 184 Mass. 350. Yerxa v. Youngman, 241 Mass. 251. Old Colony Trust Co. v.
Pitman was given powers of appointment under the third, seventh and twelfth articles, and the first article of the first codicil, of his mother’s will. It appears from the agreed facts that the property included in the trusts established by the third and seventh articles was distributed during the lifetime of Pitman. We are now concerned only with the two powers of appointment created in reference to the two remaining trusts.
Pitman made no specific mention in his will of the power created by the twelfth article, but his will contained a residuary clause devising and bequeathing his own property and that over which he had a power of appointment in equal shares to his three children, and if the exercise was valid the minor appointees would be freed from the limitations placed on them in the case of a default of appointment. The question is, Was this a good exercise of the power? Under the law of this Commonwealth a general residuary clause in the donee’s will, in the absence of anything indicating a contrary intent, is held to be a valid exercise of a general power of appointment. That was settled in Amory v. Meredith, 7 Allen, 397. See Willard v. Ware, 10 Allen, 263; Bangs v. Smith, 98 Mass. 270; Sewall v. Wilmer, 132 Mass. 131; Cumston v. Bartlett, 149 Mass. 243; Hassam v. Hazen, 156 Mass. 93; Russell v. Joys, 227 Mass. 263; Boston Safe Deposit & Trust Co. v. Prindle, 290 Mass. 577. Old Colony Trust Co. v. Allen, 307 Mass. 40. The law of England was changed by the wills act, St. 1 Vict. c. 26, § 27, so that it is now substantially similar to our own, but this act left unaffected special powers of ap
The remaining question is whether the attempted exercise of the power created by the first article of the first codicil was invalid on the ground that its execution was in fraud of the power. The decree admitting the instrument to probate in so far as it was an exercise of this particular power must have been upon the ground that its execution was not a fraud on the power. The case was heard in the Probate Court upon a statement of agreed facts and documentary evidence. The practice on appeals from the Probate Courts is the same as on appeals in equity in so far as practicable and applicable, Slater v. Munroe, 313 Mass. 538, and in equity where the evidence is documentary or consists of agreed facts then on an appeal this court stands where the trial judge stood and considers the questions raised unaffected by the decision of the trial judge. Har
Pitman could not assign to his former wife any interest in the trust fund over which he had a special power of appointment. She was not one of the objects of the power. Matter of Carroll, 274 N. Y. 288. Neither could he by the said contract exercise the power in favor of his daughters as he could execute the power only by a testamentary provision. Hill v. Hill, 278 Mass. 44. Moreover, it was the intent of the donor that the discretion and judgment of the donee in the execution of the power should remain free and untrammeled up to the time of his death. Thacker v. Key, L. R. 8 Eq. 408. Wilks v. Burns, 60 Md. 64. Farmers’ Loan & Trust Co. v. Mortimer, 219 N. Y. 290. Neither did the donor intend that he should be fettered or limited in the disposition of her property by the terms of any contract, or that, if a contract were made, he should be prevented from breaching it by the apprehension ■— no matter how ill founded it might be — that unless he performed, his estate might be liable for the breach. In re Bradshaw, [1902] 1 Ch. 436. Northern Trust Co. v. Porter, 368 Ill. 256. Am. Law Inst. Restatement: Property, § 340.
The exercise of the power was not a thing of barter or bargain, and there is a fraudulent exercise of a power not only where the donee acts corruptly for a pecuniary gain but where he acts primarily for his own personal advantage or that of a third person who is a non-object of the power and thereby abuses the power which the donor conferred on him. Matter of Carroll, 274 N. Y. 288. Vatcher v. Paull, [1915] A. C. 372. Halsbury’s Laws of England, Vol. 23, page 58. It is indisputable that in executing the contract of June 14, 1940, Pitman was acting for the benefit of his wife in attempting to transfer to her a substantial amount of money and also for his own advantage in endeavoring to release himself from the payment of alimony. If he was unable to cause these trust funds to be transferred to her then he agreed to appoint them up to a certain amount to
The decree is bo be modified by reciting that there was no valid exercise of the power of appointment created by article 1 of the first codicil of the will of Almira Pitman, but that there was a valid exercise of the power created by the twelfth article of said will, and by admitting to probate the instrument executed by Pitman and dated July 1, 1940, in so far as it is in execution of this last mentioned power. As so modified the decree is affirmed.
Ordered accordingly.