122 A. 105 | Conn. | 1923
Under Article IV of the will of Justus S. Hotchkiss, a trust fund was created for the use of Fanny W. Kingsbury for her life, and after her decease to her sister Maud L. Kingsbury for life, and upon the death of the survivor of these sisters, to such person or persons as Fanny W. Kingsbury might in writing or by her will appoint, and in default of such appointment to those who would be entitled to it if she were the absolute owner of the fund and died intestate.
Upon the death of Mr. Hotchkiss, Miss Kingsbury had the right to exercise the power of appointment so given under his will. On March 4th, 1919, she drafted and signed Exhibit D, in pencil and in due form as a completed will, except in the omission of the witnesses to her signature. Exhibit D does contain an appointment in writing which in point of form is in literal compliance with the provisions of Article IV of the will of Mr. Hotchkiss. The trial court held that "whether or not an instrument operates as an execution of a power of appointment depends upon the intention of the donee of the power." This is the unquestioned law; and this intention must appear *252 from the express words or necessary implication. 31 Cyc. 1121, and cases cited under note 69. Whether a power of appointment has been exercised, is a question of intention and a question of intention only. ReRickman, 80 L. T. Rep. N.S. 518. If the circumstances make the intention to exercise the power doubtful, it must be held that the power has not been executed. 1 Story's Equity Jurisprudence (14th Ed.) p. 245. In obedience to this principle the trial court held that Miss Kingsbury did not execute this instrument "with the intention of thereby executing her power of appointment under the will of" Mr. Hotchkiss, and hence Exhibit D was not a valid exercise of this power of appointment. The trial court has specifically found that Miss Kingsbury did not intend that Exhibit D should operate as an exercise of this power of appointment, from the facts stated in the recital of the facts above, from "an examination of the documents themselves, and the absence of any other circumstances bearing upon the question of intention." If the intention had been found from an examination of Exhibit D, or from that in connection with Exhibit F, together with the wills of Mr. Hotchkiss and Miss Kingsbury, the question of intention would have been reviewable as one of law.
A finding as a fact, of an intention from a vote and resolution, is a conclusion of law made from the language used in the vote and resolution, and hence reviewable as a finding of law. Fenwick Hall Co. v. OldSaybrook,
The finding of the trial court states that its conclusion that Miss Kingsbury did not intend Exhibit D to operate as an execution of a power of appointment, was not made from consideration of the documents before the court, but from these together with other facts in evidence before it. The conclusion is one of fact made from subordinate facts, and not reviewable unless made unreasonably, that is, contrary to the law or to the rules of logic. We turn then to Exhibit D, and from it, in connection with the other facts found, seek to discover whether the conclusion of the trial court was so unreasonable as to be erroneous as matter of law.
When Miss Kingsbury drew Exhibit D, she had before her the will of Justus S. Hotchkiss. This we know from the identity of paragraphs in the respective documents. She was a woman of education and intelligence, and knew that a will to be valid must be properly executed and the signature of the testator duly attested. She drew this instrument in her own hand and in pencil. She evidently signed it, and then or thereafter recalled that she had not attached an attestation clause and thereupon attached this to the instrument following her signature. She then or thereafter noticed that she had made no appointment of executors and attached clause 11, providing for the omission. She numbered it 11, although it followed *254
clause 9. She then or thereafter concluded that she wanted to provide two other bequests and added clause 10. Thus, by her change of the numbering of the paragraph, indicating its place before clause 11 appointing executors. The knowledge of Miss Kingsbury of the requirements in the due execution of a will, the making of this instrument in pencil, the omission of any witnesses, the addition of the two clauses subsequent to the attestation clause, the numbering of these in reverse order, all indicate that she knew that this was not a duly-executed will but was a draft preliminary to a subsequently completed will. The will of Miss Kingsbury and the codicil thereto, both dated February 20th, 1905, were placed by her in the custody of her brother-in-law and named executor, Charles B. Appleton, sometime prior to her death and were in his custody at the time of her death, while Exhibit D was found in a bureau drawer in her home, and had never, so far as appears, been delivered to the executors named in Exhibit D. The disposition and care of her will, and the exactly opposite course with Exhibit D, would suggest the inference that Miss Kingsbury did not intend Exhibit D to be a completed instrument, but rather a tentative or rough draft. The court might well have inferred that Miss Kingsbury intended at some later date to draft or cause to be drafted from the memorandum of her wishes as made in Exhibit D, a completed will which should contain a valid appointment of the trust fund provided for in Article IV of the will of Mr. Hotchkiss, and at that time to execute the instrument so as to give it effect as a will. From the condition of Exhibit D, and taking into account the knowledge concerning the execution of wills which she possessed, the trial court was justified in finding that Miss Kingsbury never intended Exhibit D to be a completed and operative will. And it was also a justifiable *255
inference that if she never intended Exhibit D to be in its then form an executed will, she could not have intended any part of that instrument to be then operative, and hence she could not have intended that Exhibit D should contain a valid exercise of this power of appointment for she did not intend any part of that instrument to be effective. It is inconceivable that she intended to execute the power and at the same time intended that several legacies provided for in Exhibit D should not take effect. Under these circumstances the trial court might well have doubted her intention to execute this power; and if it doubted, it was its duty to conclude as it did. "The intention to execute the power must be apparent and clear, so that the transaction is not susceptible of any other interpretation, and, if it be doubtful under all the circumstances, that doubt will prevent it from being deemed an execution." 1 Story's Equity Jurisprudence (14th Ed.) p. 245, and cases cited; Hill v. Conrad,
The trial court also had before it the will of 1905, in which Miss Kingsbury had inserted a provision executing any power not specifically executed by this will, and it might well have drawn the inference that a woman of Miss Kingsbury's knowledge and experience in the making of a will and the execution of a power would not have intended to dispose of this important trust fund by so slovenly, incomplete and unbusiness-like an instrument as Exhibit D. The difficulty with the appellees' position is not as to the form of the power of appointment, but as to the absence of an intention on the part of Miss Kingsbury to exercise such power.
We cannot hold that the trial court's conclusion was so unreasonable as to be erroneous in law; on the contrary, we do not see how it could have reasonably *256 found that Miss Kingsbury intended Exhibit D to be effectual as a will; unless it could so find, we do not see how it could have found that she intended Exhibit D to have been a valid exercise of Miss Kingsbury's power of appointment under Article IV of the will of Mr. Hotchkiss.
We find it unnecessary to take up the other questions raised upon the appeal in view of the conclusions reached by us.
There is no error.
In this opinion the other judges concurred, except BEACH, J., who dissented.
