Cotting v. de Sartiges

• Decision Date: 28 March 1892
• Citation: 24 A. 530,17 R.I. 668
• Parties: COTTING v. DE SARTIGES et al.
• Court: Rhode Island Supreme Court

24 A. 530

17 R.I. 668

COTTING

v. DE SARTIGES et al.

Supreme Court of Rhode Island.

March 28, 1892.

Bill in equity by Charles D. Cotting against Anna de Sartiges and others for instructions and for the administration of a trust. Decree for defendants.

William P. Sheffield and John E. Parsons, for complainant.

Middleton S. Burrill, John E. Burrill, George Zabriskie, and Francis B. Peckham,for respondents, heirs of Mrs. Bourne.

H. B. Clossen and John E. Parsons, for executor of Rice.

STINESS, J. The complainant, trustee under the will of Mary M. Bourne, late of Newport, deceased, brings this bill, practically a bill for instructions, for the distribution of the trust fund, and the case is submitted on bill, answer, and proofs. The will was dated September 30, 1879, and admitted to probate in Newport, January 10, 1882. The testatrix bequeathed one sixth of her residuary estate to the complainant in trust for the benefit of her grandson Charles Allen Thorndike Rice during his life, and upon his decease to transfer and pay over the same to his issue, if he should leave any, as he should appoint "by will, or instrument in the nature thereof, executed in the presence of three or more witnesses; and, If he leaves no issue, to and among such persons, and upon such uses and trusts, as he shall so appoint;" and, in default of such appointment and issue, to and among those who should then be heirs at law. The grandson died in New York, May 16, 1889, without issue, leaving a will executed in England, September 17, 1881, which was duly probated in New York, where he was domiciled at his death. The will did not specifically dispose of the trust fund, which was subject to Mr. Rice's appointment, nor make any mention of it. The complainant is both trustee under the will of Mrs. Bourne and executor of the will of Mr. Rice. In the latter capacity he claims the right to receive and distribute the fund, as one which passes by appointment to the legatees under Rice's will. On the other hand, the heirs of Mrs. Bourne contend that there is a default of appointment, and so, under her will, the fund goes to them. The issue now raised, therefore, Is whether there has been an execution of the power by the general residuary clause of Mr. Rice's will. Upon this issue our first inquiry must be by what law the execution of the power is to be determined. It is admitted that both in England, where the will was executed, and in New York, where the donee of the power was domiciled, there are statutory provisions to the effect that a general devise or bequest will include property over which the testator has power of appointment, and will operate as an execution of such power, unless an intention not to execute the power shall appear by the will. If, therefore, the question is to be determined either by the law of England or New York, the power has been executed. Clearly, the mere accident that Mr. Rice's will was executed in England while he was temporarily there a waiting a steamer cannot control its operation by impressing upon it the law of the place where it was made. It was neither the domicile of the testator, nor the situs of the property, nor the forum where the question comes for determination. Canfield v. Sullivan, 85 N. Y. 153. The property in dispute being personal property, which, strictly speaking, has no situs, the question must be decided either by the law of New York, the domicile of the donee of the power, or of this state, the domicile of the donor. The will is a Rhode Island will. It disposes of property belonging to a resident of Rhode Island. The trustee under the will is, in effect, a Rhode island trustee, and jurisdiction over the trustee and the fund is here. The fund in question belonged to Mrs. Bourne, and never belonged to Mr. Rice. True, he had the income from it for life, and power to dispose of it at death,—practically the dominion of an owner,—and yet it was not his.

The fund, then, being a Rhode Island fund, disposable under a Rhode Island will, it follows, naturally and necessarily, that the fact of its disposition must be determined by Rhode Island law. The question is not what interest is to be imputed to the will of Mr. Rice, but what intent is to be imputed to the will of Mrs. Bourne. She authorized a disposition of her property by an appointment, and it is under her will that the question arises whether an appointment has been made. Her will is to be adjudged by the law of her domicile. So far as assumptions of intent may be made, it is to be presumed she intended the appointment to be made according to the law of her domicile, and not by the law of New York or England, or any other place where the donee of the power might happen to, live. It is not the fact of Airs. Bourne's ownership of the property which points to the law of this state as the criterion, but the fact that her will is the controlling instrument in the disposition of the property. Precisely this question arose in Sewall v. Wilmer, 132 Mass. 131, where Judge Gray remarked that the question is singularly free of direct authority. In that case a Massachusetts testator gave to his daughter a power of appointment of certain property. The daughter lives in Maryland, where she died leaving a will devising all her property to her husband, but making no mention of the power. In Massachusetts this was an execution of the power, but in Maryland it was not; and the question arose, which law should govern? It was held that the will of the father was the controlling instrument, and hence that, the law of his domicile was to apply. The same decision was made in Bingham's Appeal, 64 Pa. St. 345, which is cited in Sewall v. Wilmer with approval. In England, also, it has been held that the validity of the execution of a power is to be determined by the law of the domicile of the donor of the power. Tatnall v. Hankey, 2 Moore, P.C. 342; In re Alexander, 6 Jur. (N. S.) 354. The principle on which these cases proceed...