Hogarth-Swann v. Weed

• Decision Date: 12 January 1931
• Citation: 274 Mass. 125,174 N.E. 314
• Parties: HOGARTH-SWANN et al. v. WEED et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

274 Mass. 125

174 N.E. 314

HOGARTH-SWANN et al.

v.WEED et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 12, 1931.

Report and Appeal from Probate Court, Middlesex County; John C. Leggat, Judge.

Petition by H. W. Hogarth-Swann and another for allowance of the will of Irving Harris Niles, deceased. From orders granting motions by Edith N. Weed and others to be made parties to the proceedings and denying petitioners' motion for probate of the will, petitioners appeal.

Reversed and rendered.

T. Hunt, of Boston, for petitioners.

J. P. Carr, of Boston, and J. Harvey, of Belmont, for respondents.

RUGG, C. J.

This case concerns a petition for the allowance of an instrument purporting to be the last will of Irving Harris Niles, late of Cambridge in this Commonwealth,deceased in 1930 unmarried and without issue. By that instrument disposition was made of all his own property and exercise was made of a power of appointment over other property. That power was conferred upon him by the will of his father, deceased, a resident of this Commonwealth, proved and allowed in 1919, and related to a trust fund established under that will. It was provided by the will of the father that the trustees therein appointed should transfer the corpus of the trust, in defalut of issue of the son, ‘to such person, persons, or corporations as my said son may by his last will direct and appoint.’ Events that have come to pass present these circumstances: The only heir at law and next of kin of the son is his aunt, a sister of his deceased mother. For this aunt some provision in made in the instrument now offered for probate as the will of the son and she assents to its allowance, but no provision is made for numerous cousins, issue of two deceased brothers and a deceased sister of his father. These cousins now constitute those who would have been the heirs at law of the father had he died immediately after the death of the son, but are not heirs at law or next of kin of the son. By the terms of the will of the father, if the son failed to exercise the power of appointment, the property which was subject to that power of appointment was given ‘to such person or persons as would have been my heirs at law had I died intestate immediately after the death of my said son,’ with a proviso not here material. Thus, if the instrument offered for probate as the will of the son is proved and allowed and the exercise of the power of appointment therein exercised be valid, no part of the trust estate of the father will go to the heirs at law of the father; while, if that instrument is disallowed and the exercise of the power of appointment be invalid, that part of the estate of the father will go to those cousins of the son heretofore described. The question for decision is whether, in these conditions, those cousins of the son who would receive the trust estate of the father in default of exercise of the power of appointment by the son are entitled to appear and be heard in opposition to the allowance of the instrument offered for probate as the will of the son.

Since these cousins are not heirs at law of the son, they have no standing as parties in interest in his estate. The statutes as to the proof of wills take no cognizance of the possible grievances of those not heirs at law of the deceased, or legatees under his will, or interested in his estate. By G. L. c. 192, § 2, it is provided: ‘If it appears to the probate court * * * that no person interested in the estate of a deceased person intends to object to the probate of an instrument purporting to be the will of such deceased, the court may grant probate thereof upon the testimony of one only of the subscribing witnesses. * * * If the probate of suhc instrument is assented to in writing by the widow or husband of the deceased, if any, and by all the heirs at law and next of kin, it may be allowed without testimony.’ The terms of G. L. c. 204, § 15, touching the adjustment by arbitration or compromise of controversies over the probate of a will, provide for an agreement to which ‘the persons named as executors, or the petitioners for administration with the will annexed, as the case may be, those claiming as devisees or legatees whose interests will in the opinion of the court be affected by the proposed arbitration or compromise, and those claiming the estate as intestate, shall be parties.’ It has been determined that, even under those provisions, a legatee under an instrument offered for probate as a will having interests adverse to those of other legatees, or adverse in some particular to those of the executors, may be permitted in the discretion of the court to become a party to a contest over the allowance of such will. It has also been held that one named as legatee under an earlier will given less or nothing under the instrument offered for proof as a will may participate in a contest over its allowance. Conley v. Fenelon, 266 Mass. 340, 344, 165 N. E. 382, and cases there reviewed. Those decisions rest upon the principle of manifest justice that commonly one's rights ought not to be precluded by the result of litigation wherein he has had no opportunity to assert his rights and present his contentions. They find support in article 11 of the Declaration of Rights of the Constitution to the effect that ‘Every subject of the commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character.’

The cousins of the son who seek to contest his will, while they have no interest in his estate, are directly interested in the due execution of the power of appointment vested in the son by the will of his father because, in the event of failure of the appointment, they will share in the trust fund established under the will of his father according to the express terms of that will. A remedy ought to be afforded them in some form to be heard on a subject vitally affecting their financial interests.

The nature of the devolution of an estate by the exercise of a power of appointment has been settled by adjudications. The property to be appointed does not belong to the donee of the power, but to the estate of the donor of the power. By the creation of the power, the donor enables the donee to act for him in the disposition of his property. The appointee designated by the donee of the power in the exercise of the authority conferred upon him does not take as legatee or beneficiary of the person exercising the power but as recipient of a benefaction of the person creating the power. It is from the donor and not from the donee of the power that the property goes to the one who takes it. The right to exercise the power is not the property, and cannot be reached by the creditors of the donee of the power. Only when the donee of the power has not sufficient property to pay his debts does the property which he actually has appointed by the exercise of the power become a part of his estate; and that is for the reason that, under the principles of equity, volunteers ought not to possess the property through his action to the exclusion of his creditors, in whose favor he is deemed to have owed a duty to appoint the property in such circumstances. Harmon v. Weston, 215 Mass. 242, 249, 102 N. E. 470;Hill v. Treasurer and Receiver General, 229 Mass. 474, 476, 118 N. E. 891, L. R. A. 1918D, 337;Shattuck v. Burrage, 229 Mass. 448, 451, 118 N. E. 889;Minot v. Paine, 230 Mass. 514, 519-521, 120 N. E. 167, 1 A. L. R. 365, and cases there reviewed; United States v. Field, 255 U. S. 257, 263, 41 S. Ct. 256, 65 L. Ed. 617, 18 A. L. R. 1461;Wachovia Bank & Trust Co. v. Doughton, 272 U. S. 567, 575, 47 S. Ct. 202, 71 L. Ed. 413. The validity and effect of the instrument whereby the power of appointment as to personal property is exercised must be determined as to both form and substance by the law of the domicil of the donor and not of the donee of the power. An instrument may be invalid as a will according to the law of the domicil of the donee of the power, and yet be upheld in the domicil of the donor of the power as a valid testamentary instrument and thus operative as an exercise of the power of appointment. Sewall v. Wilmer, 132 Mass. 131, 136;Walker v. Treasurer & Receiver General, 221 Mass. 600, 603, 109 N. E. 647. Where the power contains the provision that it must be exercised by will and the donee of the power domiciled in another country executes an instrument invalid as a will under the law of his domicil but good as to form and substance in the country of the domicil of the donor of the power, where also is the property to be appointed, it has been held that that instrument must be proved as a will in the courts of the latter country for the purpose of affecting the property to be appointed, though perhaps not for other purposes. Murphy v. Deichler, [1909] A. C. 446. In the Goods of Huber, [1896] P. 209; Bearn v. Winans, 111 Md. 434, 465, 470, 74 A. 626. In a petition for the probate of such an instrument as a will to be operative on the appointed property alone, it is obvious that the heirs of the donee of the power, unless they would take in default of exercise of the power, would have no interest. It is equally obvious that those who, under the terms of the instrument creating the power,...