Hillen v. Iselin

• Decision Date: 15 January 1895
• Citation: 39 N.E. 368,144 N.Y. 365
• Parties: HILLEN v. ISELIN et al.
• Court: New York Court of Appeals Court of Appeals

144 N.Y. 365

39 N.E. 368

HILLEN

v.ISELIN et al.

Court of Appeals of New York.

Jan. 15, 1895.

Appeal from supreme court, general term, First Department.

Action by Sophia Frick Hillen, individually and as executrix, etc., against Adrian Iselin and others, for the construction of a will, and to set aside as void the exercise of a power conferred thereby. From a judgment of the general term (22 N. Y. Supp. 282) in defendants' favor, plaintiff appeals. Affirmed.

This action if for the construction of the will of Columbus O'Donnell, in his lifetime a citizen and resident of Maryland, who died in 1873, leaving four children surviving him, including a daughter, Mrs. Emily Hillen, who died in 1888, leaving two children, Thomas Hillen and Emily McSherry, and to have an appointment made by Emily Hillen in her will, in attempted exercise of a power conferred upon her by the will of her father, Columbus O'Donnell, declared to be invalid, as not in conformity to this power. Both of the children of Emily Hillen were living at the death of Columbus O'Donnell, and also at her death, in 1888. Her son, Thomas Hillen, died about a month after the death of his mother, leaving, surviving him, his widow, the plaintiff in this action, and an infant son, the defendant Thomas O'Donnell Hillen, who was living at the death of his grandmother, Emily Hillen. The defendants Adrian Iselin, Jr., and Richard M. McSherry, are trustees under the appointment made by the will of Emily Hillen. The two former reside in the city of New York, and have possession of the stock, bonds, and securities which were transferred by the trustees and executors of the will of Columbus O'Donnell to them as trustees under the appointment in the will of Emily Hillen, and of the reinvestments made from time to time. Thomas Hillen, the son of Emily Hillen, who, as stated, died after the death of his mother, left a will, bequeathing and devising all his property to his wife, the plaintiff, without any appointment under the provisions of his mother's will, he claiming that the power of appointment conferred on Emily Hillen by the will of Columbus O'Donnell was never validly exercised by her, and that, in consequence, he took an absolute title on the death of Emily Hillen to one-half of the four-twentieth parts of the estate of Columbus O'Donnell, given to Emily Hillen for life, under the clause in his will providing for its disposition in default of an appointment by her. If the appointment was valid, the infant son of Thomas Hillen took the two-twentieths under the appointment in the will of Emily Hillen. The controversy, therefore, is between the mother, claiming under the will of her husband, Thomas Hillen, and the son, claiming under the appointment of his grandmother.

It is necessary to state with more particularity the provisions in the will of Columbus O'Donnell and of the appointment made by Emily Hillen upon which the questions arise. Columbus O'Donnell, in the sixteenth article of this will, devised four-twentieths of his residuary estate to Charles Oliver O'Donnell (his son), Adrian Iselin, C. Morton Stewart, and Elliott O'Donnell Poor, the survivors and survivor, the heirs, executors, and administrators of the survivor, and their successors in trust, during the life of his daughter Emily Hillen, to pay the net income to her, for her sole and separate use; and the will then proceeds as follows: ‘And, from and immediately after the death of my said daughter Emily, then the whole of the said last-mentioned four-twentieths parts or shares of the rest, residue, and remainder of my estate aforesaid, or the property, stock, or funds of all kinds in which the same may be invested at the time of my said daughter Emily's decease, is to continue in further trust, and to be held by the said trustees and their successors to and for such child or children of my said daughter Emily, or his, her, or their descendant or descendants, and in such proportions and for such estate and estates therein, either in fee or for a less estate, and with such limitations and conditions, as my said daughter Emily may be her last will and testament, or by any instrument of writing in the nature of a last will and testament, notwithstanding any coverture she may be under, executed in the presence of three or more witnesses, name, limit, and appoint to take the same; and in case my said daughter Emily shall die without having executed, under and in pursuance of the power above given to her, any such will or instrument of writing in the nature of a will limiting and appointing the said four-twentieth parts or shares in manner aforesaid, then, in default of such limitation and appointment by my said daughter Emily, it is my will, and I so declare and direct, that, from and immediately after the decease of my said daughter Emily, the said trustees and their successors shall continue to have and to hold the said last-mentioned four-twentieth parts or shares of the said rest, residue, and remainder of my estate as aforesaid, or the property, stock, or funds of all kinds in which the same may be invested at the time of my said daughter Emily's decease, in trust for the uses and purposes following, that is to say: First. In case my said daughter Emily shall leave living at her death any child or children, or any descendant or descendants of any child or children of hers who may have died in her lifetime, then in trust for any and every such child or children of my said daughter Emily, and any and every such descendant and descendants of any child of hers, living at her death, their heirs, executors, administrators, and assigns,-if but one, to take the whole; if more than one, to be equally divided between them per stirpes, and not per capita,-and such descendant or descendants of any child to take only the part or share to which such child would have been entitled if then living. Secondly. In case my said daughter Emily shall not leave living, at her death, any child nor any descendant of any child of hers, then and in that case the said trustees and their successors shall continue to hold the whole of the said last-mentioned four-twentieth parts or shares of the said rest, residue, and remainder of my estate as aforesaid, or the property, stock, or funds of all kinds in which the same may be invested at the time of my said daughter Emily's decease, in trust for the following uses and purposes, that is to say: In trust to and for such of my other children or their descendants or descendant, and in such proportions and for such estate and estates therein, either in fee or for a less estate, and with such limitations and conditions as my said daughter Emily may by her last will and testament, or by any instrument of writing in the nature of a last will and testament, notwithstanding any coverture she may be under, executed in the presence of three or more witnesses, name, direct, limit, and appoint to take the same. And, thirdly, in case my said daughter Emily shall die without having executed, under and in pursuance of the power above given to her, any such will, or instrument of writing in the nature of a will, limiting and appointing the said last-mentioned four-twentieth parts or shares in manner aforesaid, then, in default of such limitation and appointment by my said daughter Emily, and in the event also of her dying without leaving any child or any descendant of any child of hers living at the time of her death as aforesaid, it is my will, and I so declare and direct, that, from and immediately after the decease of my said daughter Emily, the said trustees and their successors shall have and hold all the said last-mentioned four-twentieth parts or shares of all the said rest, residue, and remainder of my estate as aforesaid, or the property, stock, or funds of all kinds in which the same may be invested at the time of my said daughter Emily's decease, to and for all my other children then living, and all the descendant or descendants then living of such of them as may be then dead, their heirs, executors, administrators, and assigns,-if but one, to take all; if more than one, to be equally divided between them per stirpes, and not per capita.’ The appointment in the will of Mrs. Emily Hillen is in these words: ‘(3) I give all the rest of my estate of every kind, including herein all the estate over which I have a power of appointment under my father's will, to Adrian Iselin, of the city of New York, and Richard Fisher, of the city of Baltimore, and the survivor of them, and the heirs, executors, administrators, and assigns of such survivor, in trust to collect the rents, issues, and profits thereof, and pay all necessary expenses thereout, including a commission of two and one-half per cent. to said trustees on the income, and to pay one-half part of the net income to my said son for and during the term of his natural life, and the other part to my daughter for and during the term of her natural life, without the power to my said son or daughter to contract any debt that may bind either the principal or the said income, or to make any assignment thereof, or in any manner to draw upon or anticipate the same, and so that the same shall not be in any manner liable for his or her debts, contracts, or engagements, and shall be paid to him or her alone, and as fast only as it shall be received, and so that the share of my daughter shall be free from the power or control of her husband for her sole use. (4) I empower my son as to his share,-that is to say,-one-half part of said rest of the estates, and also as to the other half part also in case of the death of my daughter without leaving a child or descendant living at her death, as hereinafter mentioned (and such power as to said other half may be exercised whether he survive her or not), to appoint the remainder to and for such one or more child, children, descendant, and descendants of him, and in such proportion and for...