Pitman v. Pitman

• Decision Date: 27 July 1943
• Citation: 50 N.E.2d 69,314 Mass. 465
• Parties: PITMAN v. PITMAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

314 Mass. 465

50 N.E.2d 69

PITMAN

v.PITMAN.

Supreme Judicial Court of Massachusetts, Norfolk.

July 27, 1943.

Proceeding by Theodore B. Pitman, executor of the will of Benjamin Pitman, for the probate of the will of Benjamin Pitman, opposed by Benjamin Pitman, Jr. From a decree of the probate court allowing and admitting to probate the will, Benjamin Pitman, Jr., appeals.

Decree modified, and as modified affirmed.Appeal from Probate Court, Norfolk County; Reynolds, Judge.

Before FIELD, C. J., and DONAHUE, QUA, and RONAN, JJ.

J. B. Dolan, of Boston, for petitioner.

T. Allen, of Boston, for respondent.

C. Gerstein, of Boston, and L. Nevas, of Westport, Conn., for L. C. Putman, Guardian.

RONAN, Justice.

This is an appeal from a decree of the Probate Court for Norfolk County, allowing and admitting to probate a certain instrument as the last will of Benjamin Pitman in so far as it is in execution of certain powers of appointment granted to him in the will of Almira Pitman.

Benjamin Pitman, a resident of and domiciled in Stamford, Connecticut, died on February 26, 1942, leaving as his heirs at law and next of kin his wife, Helen, a son, Benjamin Pitman, Jr., and two minor daughters, Diane Therese and Lorraine Marie Pitman. The son was the issue of the marriage of Benjamin Pitman and Harriet Taylor Pitman, and the daughters, of his marriage with Letteria Curcurento Pitman. There were no children by his marriage with Helen Smith Pitman, his widow.

Almira Pitman, the mother of Benjamin Pitman, died on December 17, 1939, a residentof Brookline in this Commonwealth. Her will and three codicils were duly admitted to probate in the Probate Court for Norfolk County. Trusts for the benefit of Benjamin Pitman were established by article 12 of her will and by article 1 of the first codicil of her will. The terms and conditions of each trust were identical. They provided for the payment of income to Pitman during his life and gave him a power to appoint the principal ‘to and among such one or more of the then living issue of my deceased mother, Maria Theresa Hollander, in such shares, for such estates, and on such conditions as may be permitted by the laws of the Commonwealth of Massachusetts, as he shall appoint by his last will duly admitted to probate.’ In default of appointment the trust fund was to be divided equally between the living children of Pitman and issue of his deceased children, principal to be paid to such of the children as were twenty-one years old at the death of their father or to the issue of a deceased child, and the income to be paid to the minor children until they became twenty-one years of age, when their shares were to be paid to them, with a provision for payment of the share of any child dying under that age to his issue or, in default of issue, to the surviving child or children and the issue of any deceased child.

A divorce was granted to Pitman's second wife, in Connecticut, on June 14, 1940. On that date she and Pitman entered into a written agreement in reference to the custody of the two daughters and the payment of alimony. In this agreement he purported to assign to her all his right, title and interest in the trust established for his benefit under article 1 of the first codicil in an amount not in excess of $25,000, and upon the transfer of this property to her he was to be relieved from the further payment of the alimony set forth in the agreement. In the event that she did not receive any of the trust property, he then attempted by the said agreement to appoint the trust property in favor of his two daughters to an amount not in excess of $25,000, and further agreed to exercise the power of appointment in their favor to the said amount by his last will and testament, and reserved the right to appoint the trust fund in excess of $25,000 as he might see fit. No part of the trust fund has ever been paid to this former wife.

On July 1, 1940, Pitman executed his will. The will contained a provision by which he attempted to exercise the power granted to him under article 1 of the first codicil by appointing the trust fund, to the extent of $12,500, to each of his daughters, and the balance, if any, to his son. The will recited that the ‘aforesaid provision is in accord with * * * a certain agreement made by me with my former wife * * * dated June 14, 1940, by which I undertook and agreed to assign to my said former wife, by way of alimony, all of my right, title and interest in and to the trust created under Article I of the codicil of my mother's will * * * to the value and amount of Twenty-five Thousand (25,000) Dollars, and by the terms of which said agreement I authorized and empowered the trustees appointed under the terms of my mother's will and codicil to pay over and deliver to my said former wife an amount not in excess of Twenty-five Thousand (25,000) Dollars out of the principal of said trust, and by the terms of which I further undertook to exercise the power of appointment * * * over the remainder of the principal * * * in favor of my two children * * * [the daughters] to an amount not in excess of Twenty-five Thousand (25,000) Dollars, provided there had not been transferred and delivered to my said former wife as of the date of my death my interest in said trust to an amount not in excess of Twenty-five Thousand (25,000) Dollars.’ Pitman's will further provided that if the trustees under his mother's will had paid his former wife the amount provided in the said agreement, then he appointed the balance of the trust fund equally to his three children. The residue of his property was given in equal shares to his children. The petitioner and appellee in the instant case, Theodore B. Pitman, was named executor. No question is raised as to the proper execution of this instrument as a will.

Benjamin Pitman married Helen L. Smith on October 2, 1941. The Court of Probate for the county of Fairfield, in the State of Connecticut, entered a decree on April 2, 1942, refusing to admit to probate the instrument of July 1, 1940, and ordered that the estate be settled as an intestate estate on the ground that the said instrument was revoked by the subsequent marriage of Pitman. No appeal was taken from that decree.

The domiciliary State having decided that Pitman's will had been revoked, the first issue now presented for decision is whether the Probate Court of Norfolk County had jurisdiction to admit the instrument to probate in so far as it is in execution of the powers of appointment granted to Pitman under the will of Almira Pitman. The value at the death of Pitman of the property held in trust under the twelfth article of Mrs. Pitman's will amounted to $17,150, and of that held in trust under article 1 of the first codicil to her will, to $15,800. This property is held by the trustees appointed by the Probate Court of Norfolk County. They are required to administer the trusts in accordance with the will of Mrs. Pitman and are accountable to the said court for the faithful discharge of their duties. Campbell v. Wallace, 10 Gray 162;Jenkins v. Lester, 131 Mass. 355. The property over which Pitman had a power of appointment belonged to the estate of his mother. He possessed only the authority to effectuate the transmission of the appointed property from her estate to those he was empowered by her to name as recipients of her property. A donee does not own the property over which he has a power of appointment, Harmon v. Weston, 215 Mass. 242, 102 N.E. 470;Dexter v. Attorney General, 224 Mass. 215, 112 N.E. 946;Hill v. Treasurer and Receiver General, 229 Mass. 474, 118 N.E. 891, L.R.A.1918D, 337;Minot v. Paine, 230 Mass. 514, 120 N.E. 167, 1 A.L.R. 365;Hogarth-Swann v. Weed, 274 Mass. 125, 174 N.E. 314, even though it is considered, in equity, as his when his own estate is insufficient to pay his debts and the appointed property may be used for the benefit of his creditors; and such property has been regarded as a part of his estate for the purpose of taxation, where the taxing statutes so provide, and in permitting the issue of an appointee, who is a relative of the donee within G.L.(Ter.Ed.) c. 191, § 22, to take where the appointee predeceases the donee. Clapp v. Ingraham, 126 Mass. 200; Thompson v. Pew, 214 Mass. 520, 102 N.E. 122;State Street Trust Co. v. Kissel, 302 Mass. 328, 19 N.E.2d 25, 121 A.L.R. 796;Graves v. Schmidlapp, 315 U.S. 657, 62 S.Ct. 870, 86 L.Ed. 1097, 141 A.L.R. 948.

It is settled in this Commonwealth since the leading case of Sewall v. Wilmer, 132 Mass. 131, that the validity of the exercise of a testamentary power of appointment by a nonresident donee, upon whom the power was conferred by the will of a decedent domiciled here at the time the power was created and at the time of his death, must be determined by the law of this Commonwealth. It was said in Hogarth-Swann v. Weed, 274 Mass. 125, 130, 174 N.E. 314, 315, by Rugg, C. J., that ‘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.’ That principle is illustrated in our own decisions by Tudor v. Vail, 195 Mass. 18, 80 N.E. 590;Walker v. Treasurer & Receiver...