DeCharette v. DeCharette

• Decision Date: 24 March 1936
• Citation: 264 Ky. 525
• Parties: De Charette v. De Charette.
• Court: United States State Supreme Court — District of Kentucky

264 Ky. 525

De Charette v. De Charette.

Court of Appeals of Kentucky.

Decided March 24, 1936.

1. Powers. — When donee of a power exercises the appointment, donee is disposing of donor's property.

2. Powers. — Donee of general power of appointment may turn

stream of donor's munificence to any person or point within donee's discretion.

3. Powers. — In exercising power of appointment, donee, although he may not be confined in designation of recipients either in choice of persons or extent of division, is confined to method of execution provided in power.

4. Powers. — If powers of appointment is not exercised in good faith and for purposes created and in manner provided, power will be deemed ineffectual against parties entitled to its benefits.

5. Powers. — Where testatrix gave daughter general power of appointment in manner expressing trust and confidence personal to daughter and power involved wide discretion of choice, daughter could not assign, transfer, or delegate such power.

6. Powers. — Rule that if power of appointment is general, power may be delegated, must be confined to cases where donee could have appointed himself or appointment was limited to a class.

7. Powers. — Where donee of general power of appointment was dealing with donor's property, donee could not delegate power to her daughter, even though donee confined it to daughter's issue, since, if such delegation were permitted, power of appointment could be delegated and carried on indefinitely.

8. Powers. — Where donee had general power of appointment by will with discretion as to choice, delegation of power to daughter was invalid, and hence devise to daughter with remainder to her issue, vested daughter with life estate only and not fee.

9. Powers. — Destruction of donee's power of appointment by attempted delegation of power to daughter, held not to invalidate devise to daughter for life with remainder to her issue per stirpes in event of daughter's intestacy.

10. Powers. — In determining validity of donee's attempted delegation of power of appointment, donee's intention, if legal, should prevail.

11. Powers. — Where general power of appointment was limited to execution by will, validity of exercise of power was governed by reference to donor's death and not time of exercise of power Ky. Stats., sec. 2360).

12. Perpetuities. — Where it appeared that donee of power of appointment intended in devise to daughter, with remainder to her issue, to vest remainder in daughter's children, such devise held not violative of statute against perpetuities (Ky. Stats., sec. 2360).

While term "issue" may include all lineal descendants or posterity, in common parlance and as used generally, the term signifies "children."

Appeal from Shelby Circuit Court.

GILBERT & DAVIS and C.G. BARRICKMAN and RICHARD PRIEST DIETZMAN for appellant.

T.B. ROBERTS for appellee.

OPINION OF THE COURT BY STANLEY, COMMISSIONER.

Affirming.

The disposition of Allendale Farm by the wills of Mrs. Susan Meriwether and her daughter, Mrs. Sue T. Henning, was before us in De Charette v. St. Matthews Bank & Trust Co., 214 Ky. 400, 283 S.W. 410, 50 A.L.R. 34; De Charette's Guardian v. Bank of Shelbyville, 218 Ky. 691, 291 S.W. 1054; St. Matthews Bank v. De Charette, 259 Ky. 802, 83 S.W. (2d) 471, 99 A.L.R. 1146, and Godfroy v. De Charette, 260 Ky. 147, 84 S.W. (2d) 66. Only a brief summary of the documents as construed by those opinions is necessary to the consideration of the question now before us. The wills are set out in full in one or more of the other opinions.

Mrs. Meriwether devised the farm to Mrs. Henning in trust for life, with a testamentary general power of appointment, coupled with the provision that should the power not be exercised the farm should pass to Mrs. Henning's children, but if none, then, contingently, to others therein designated. In the exercise of the appointment, Mrs. Henning appointed the estate to her daughter, Susanne, the Marquise De Charette, in trust for life, with remainder to her issue in such proportion as she might by her will devise, or, in case she made no such devise, then to her issue per stirpes. However, by codicil, this appointment by Mrs. Henning to her daughter was modified to the extent that the farm was made chargeable with a certain payment to Godfroy and Holt. We held in St. Matthews Bank v. De Charette, supra, that Mrs. Henning's creditors could not subject the property to the satisfaction of her debts under the doctrine that where one exercising a general power of appointment has failed to exercise it in favor of his creditors equity will do so. The question is now being raised as to the construction of the will relating to the interest or rights of Madame De Charette.

The judgment is that Madame De Charette is the owner of a life estate in the farm, with remainder over to her issue. She questions the correctness of that adjudication in opposition to her minor daughter, Susanne Meriwether De Charette. The material part of Mrs. Henning's will is as follows:

"The estate in Shelby County, Kentucky, known as the Allendale Farms, * * * in the exercise of the power granted to me by the will of my mother, I give, devise and bequeath to my Trustees, * * * in trust, to hold, collect the rents and issues thereof and to pay the net income therefrom to my daughter Susanne de Charette, for and during her natural life, and at her death to convey, deliver and turn over the same to the issue of my daughter, Susanne de Charette, in such shares and proportions as she may by will devise, or if she shall leave no will, then to said issue in equal shares, per stirpes and not per capita."

The appellant maintains that in so far as her mother, Mrs. Henning, exercised the power granted by Mrs. Meriwether in her favor for life, it is valid, but in so far as she undertook to give her a power of appointment to appoint the property to her issue in such proportions as she might by will devise or in the event of default of such appointment then devising it to her issue per stirpes, the appointment is invalid, because (a) it created a perpetuity, and (b) Mrs. Henning could not delegate her power of appointment to her appointee. Then, being invalid so far as the remainder is concerned, it is argued, she takes the property under the will of her grandmother, Mrs. Meriwether, and thereby acquires a fee-simple title. The appellee, the guardian ad litem of Susanne Meriwether De Charette, denies that a perpetuity was created, and maintains that having the absolute general power of appointment Mrs. Henning could do anything with the estate she desired, and she was therefore authorized to carry the appointment on to her daughter. The appellee in further avoidance of the appellant's contention presses in brief that a judgment of the Henry circuit court rendered some time ago and not appealed from, which adjudged a life estate in Mrs. Henning, is binding upon her.

It is the universal conception that when the donee of a power exercises the appointment, he is disposing of the property of the donor. He is, as has been said,

"employed to manage the conduit pipe of another's munificence [and] is authorized by a general power of disposal to turn the stream of it to any person or point within the compass of his discretion."

Commonwealth v. Duffield, 12 Pa. 277, quoted in St. Matthews Bank v. De Charette, supra. In exercising the power, the donee, although he may not be confined in the designation of the recipients either in choice of persons or extent of division among them, is confined to the method or mode of execution provided in the power and must strictly keep within these limitations of performance and duty. If the power be not exercised in good faith and for the purposes created, and in the manner provided, it will be deemed ineffective against the parties entitled to its benefits. Boyce v. Waller, 9 Dana (39 Ky.) 478; Greenway v. White, 196 Ky. 745, 246 S.W. 137, 32 A.L.R. 1385; Chenoweth v. Bullitt, 224 Ky. 698, 6 S.W. (2d) 1061; Chenault's Guardian v. Metropolitan Life Ins. Co., 245 Ky. 482, 53 S.W. (2d) 720, 721; Perry on Trusts, sec. 254.

Mrs. Meriwether appointed her daughter, Mrs. Henning, to dispose of the farm by will to whomsoever she chose. There is nothing in the power indicating otherwise than that it should of itself be a final and complete disposition. There is nothing suggesting that the donee might delegate to any other person that responsibility or privilege. As previously stated, "the...