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Court Hears Trustees’ Accounting and Determines the Validity of Power of Appointment


This is a trustees’ accounting and, as an incident thereto, the Court is required to determine the validity of the exercise of the power of appointment granted in article ‘Eighth’ of the testator’s will to his daughter as appointee.

The testator died May 11, 1933, leaving a will which was admitted to probate. By article ‘Eighth’ he created a trust of a fund, the income of which was to be paid to his daughter during her lifetime and upon her death the principal was to be paid to such persons as she designated by her last will, and should she die intestate, to those persons who at the time of her death shall constitute her next of kin. The residual provision contained in article ‘Eleventh’ of the said will provides for an identical disposition of the portion of said residual fund bequeathed to the daughter.

The daughter died a resident of Kings County on September 9, 1957, and under article ‘Fifth’ of her will she attempted to exercise the power of appointment of the corpus of the trust created for her benefit by dividing the same into as many shares as her son may leave issue living at her death which shares were to be held in trust for their respective lives, the income to be paid them from time to time and upon the death of each beneficiary the principal to their issue or, in default of issue, to the remaining children per stirpes. The children of the testator’s grandson, the only issue of the daughter are four infants, each under fourteen years of age, all of whom were born subsequent to testator’s death.

When determining the validity of an appointment, the provisions of the appointee’s will must be read into the will of grantor, and read as if incorporated therein. The trusts created under the will of the appointee for her grand-children must be read into the will of the decedent which will determine the validity of the bequests. The attempted exercise of the power of appointment by the daughter suspended the absolute ownership of personal property during the lives of persons not in being at the death of the decedent and is violative of the statute and illegal.

An illegal appointment is no appointment. By the terms of his will, the testator contemplated as alternative beneficiaries, in the event of his daughter’s failure validly to exercise her appointive power, those persons who constituted her next of kin. Under these circumstances the income and remainder will vest in the alternative beneficiaries designated by the testator’s will. The disposition of this trust corpus is to be made to the next of kin of the daughter. Settle decree on notice.

In another estate case, a final accounting of a trust created for the decedent under clause Ninth of testatrix’ will, a construction is sought as to the disposition of the remainder thereof. Testatrix died on March 27, 1918. Under the aforesaid clause testatrix devised two parcels of realty in trust, with power to convert the same into cash, and to divide the same into two equal parts: ‘to pay the income of one of said parts to the decedent.

The decedent, for, and during the term of his natural life, and after his death, to pay the income of said part to an heir. Testatrix then provided that the income of the other part be paid to decedent for life, then to his issue until 21 years old and then the principal to them in equal shares, and if there be no issue, the income to be paid to decedent’s wife for life, ‘and upon her death, the said part and all increments thereof are to be disposed of as directed in the tenth clause of this, my last Will and Testament.’ The income of decedent’s trust was paid to him for life and thereafter to an heir, who survived him and died on January 7, 1954. The heir’s trust still subsists as he died without issue but was survived by his widow, who was the contingent secondary beneficiary of his trust.

The Tenth clause of testatrix’ will disposed of her residuary estate, which she gave in trust for the lifetime benefit of a niece, and the remainder was given in equal shares to four charitable organizations. The niece predeceased the testatrix.

Decedent’s only child contends that there being no provision for the disposition of decedent’s trust after the death of the heir, the gift lapsed and there was an intestacy, which should be paid to the natural objects of the testatrix’ bounty, the heirs, and that upon the death of both the decedent trustee and the heir, he was left as the sole heir and should receive such part. The probate proceedings however disclose that the heirs were step-sons of the testatrix.

It is urged that under the principle declared in a jurisprudence that is an unrestricted gift of income without limitation of time and no express disposition of the principal, the corpus of the trust vested in the income beneficiary. A similar argument was advanced in another case and rejected as the instrument under construction contained a residuary clause, under which it was held that the trust corpus was payable to the residuary legatee.

In the instant case no intestacy of the remainder of the trust follows because of the failure to provide for its disposition within its own clause. Clause Tenth–the residuary clause–is broad enough to embrace within it the said remainder, affirmed and the will is so construed.

If you are uncertain on how to dispose your estate properly, you can consult with Stephen Bilkis and Associates. We will inform you of the proper disposition of an estate in accordance with law.

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