Dodge's Estate, In re

• Citation: 11 Misc.2d 307,172 N.Y.S.2d 213
• Parties: In re ESTATE of Emily S. DODGE. Surrogate's Court, New York County
• Decision Date: 28 February 1958
• Court: New York Surrogate Court

Page 213

172 N.Y.S.2d 213

11 Misc.2d 307

In re ESTATE of Emily S. DODGE.

Surrogate's Court, New York County.

Feb. 28, 1958.

Breed, Abbott & Morgan, New York City, (Robert A. Hendrickson, Jr., New York City, of counsel), for Manufacturers Trust Co., surviving trustee.

Joseph V. Iaricci, Forest Hills (Vincent L. Pitaro, Forest Hills, of counsel), pro se and for George Yott and Helen Yott.

Harry I. Stein, New York City, for Emilie Susan Dodd.

Samuel M. Miller, New York City, for Charlotte Yott.

Salvatore M. Parisi, Lake Ronkonkoma, for Rev. Eugene J. Erny, individually and as executor of last will and testament of Cleveland C. Yott, deceased.

JOSEPH A. COX, Surrogate.

The thirteenth article of the decedent's will created a trust of one-fifth of her residuary estate for the benefit of her nephew Cleveland C. Yott. The testatrix directed that upon the death of her nephew the trust principal be paid to such persons and in such proportions as he might direct by his will. The nephew survived the testatrix and died testate. His will, admitted to probate in Queens County, directs the payment of his debts and funeral expenses, bequeaths general legacies in a total amount of $9,750 and bequeaths his residuary estate in equal shares to four residuary legatees.

The second article of the nephew's will bequeaths one of the general legacies in the language following:

'I hereby give, devise and bequeath to Rev. Eugene J. Erny, of 94-20 160th Street, Jamaica, New York, the sum of Six Thousand ($6,000.00) Dollars, to be his absolutely and forever, for the many kindnesses he has extended to me, and I direct that in the event I leave insufficient real or personal property with which to pay said sum to said Rev. Eugene J. Erny, then in that event I direct that said sum be paid to him out of the principal of the trust fund created for my benefit under the Last Will and Testament of my aunt, Emily S. Dodge, probated in the Surrogate's Court, New York County, December 19, 1928, and under which I am at liberty to dispose of by my Last Will and Testament.'

The first paragraph of the residuary provision of the nephew's will reads:

'Seventh. All the rest, residue and remainder of my property, of whatsoever kind and nature, and wheresoever the same may be situate of which I may die seized or possessed or to which I may be entitled at the time of my death, including any and all of the balance of the principal of the trust fund created for my benefit under the Last Will and Testament of my aunt, Emily S. Dodge, probated in Surrogate's Court, New York County, December 19, 1928, and under which I am at liberty to dispose of by my Last Will and Testament, I hereby dispose of as follows:'

The nephew of the testatrix was the donee under her will of a general power to appoint the remainder of the testamentary trust of which he was the income beneficiary and it is beyond dispute that he exercised this power in his own will. The latter instrument is deemed to be read into the will of the donor of the power, inasmuch as the donee's exercise of the power of appointment is a disposition of property of the testatrix and not of property of the donee (Matter of New York Life Insurance & Trust Co., Sur., 139 N.Y.S. 695, affirmed 157 App.Div 916, 142 N.Y.S. 1132, affirmed 209 N.Y. 585, 103 N.E. 315; Bishop v. Bishop, 257 N.Y. 40, 177 N.E. 302, 80 A.L.R. 1198; Matter of Harbeck, 161 N.Y. 211, 55 N.E. 850; Matter of Gray's Estate, 176 Misc. 829, 29 N.Y.S.2d 123, affirmed 266 App.Div. 732, 41 N.Y.S.2d 949, affirmed 292 N.Y. 532, 54 N.E.2d 380; Matter of Walbridge's Estate, 178 Misc. 32, 33 N.Y.S.2d 47) and this court, having jurisdiction of the donor's estate, is required to determine the operation and effect of the exercise of the power.

An issue arises in this proceeding not because of any failure to exercise the power of appointment or by reason of any invalidity resulting from its exercise but because of questions raised as to the intention of the donee. It is alleged by the accounting trustee and by the executor under the will of the donee that the assets of the donee are not only inadequate to permit payment of general legacies but are too meagre to meet his debts and funeral expenses and, for such reason, the court is asked to determine whether the appointed property may be resorted to for the purpose of making any or all of these payments.

The second article of the donee's will, quoted above, is a plain direction that, in the existing circumstances, resort may be had to the appointed property for the purpose of paying the legacy provided in that article. While the will is silent as to the source of the funds required to pay other general legacies and, in the absence of facts indicating a different intention, it would be assumed that such legacies would be paid from the reason for concluding that the donee intended all legacies to be paid from the appointed property. Such conclusion is supported by precedent.

Matter of Lynn, 261 App.Div. 513, 26 N.Y.S.2d 96, affirmed 287 N.Y. 627, 39 N.E.2d 266, was a holding that the will of a donee of a power of appointment was an effective exercise of the power despite the fact that the will lacked an explicit reference to the power, that application of Personal Property Law, § 18, required such a result and that this statute is not to be interpreted as requiring the appointed property to be disposed of only in accordance with the provisions of the residuary clause of a will. In the cited case, as here, the amount of the bequests in the will far exceeded the value of the testator's property and the court found from such circumstance an intention on the part of the testator that the appointed property be availed of for the purpose of paying legacies to the extent to which his own property was insufficient to make full payment to the legatees.

Consistent with the reasoning of the Lynn decision, it was later held that the explicit exercise of a general power of appointment in the residuary clause of a will which provided testamentary gifts far in excess of the decedent's personal means did not limit the disposition of the appointed property to the residuary legatees but instead evidenced a testamentary purpose to exercise the power by the entire will with the result that the appointed property could be drawn on to fulfill the pre-residuary bequests. Matter of Burchell's Trust (Gardner), 278 App.Div. 450, 105 N.Y.S.2d 431.

If there is basis for reaching a different conclusion in the case at bar it could find support only in the text of the second article of the donee's will. It is arguable that the preference there granted is expressive not only of an intention that the legatee there named be paid from the appointed property, if necessary, but that this legacy alone be so favored and other general...