Pitman v. Pitman
| Decision Date | 27 July 1943 |
| Citation | 50 N.E.2d 69,314 Mass. 465 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | THEODORE B. PITMAN v. BENJAMIN PITMAN, JUNIOR, & others. |
May 10, 1943.
Present: FIELD, C.
J., DONAHUE, QUA & RONAN, JJ.
Power. Devise and Legacy, Power.
Conflict of Laws. Will, Revocation, Exercise of power of appointment. Constitutional Law, Full faith and credit. Fraud.
The law of this Commonwealth governed determination of the validity of the exercise of a testamentary power of appointment by a donee who died domiciled in another State but upon whom the power to appoint, "in such shares, for such estates, and on such conditions as may be permitted by the laws of" this Commonwealth, was conferred by the will of a decedent who died domiciled here, who was so domiciled when the power was created and whose estate subject to the power was located here; and such determination by our courts was not precluded under the full faith and credit provision of the Federal Constitution by a previous decree of a court of the other State adjudging that the donee's will had been revoked by his marriage subsequent to its execution.
An exercise, by a nonresident donee by his will, not made in contemplation of marriage but followed by a marriage, of a power given under the will of one domiciled here, if not made in fraud of the power, was valid under the provisions of G. L. (Ter. Ed.) c. 191 Section 9, notwithstanding such marriage, where it appeared that in default of exercise of the power the children of the donee and issue of deceased children would have been the persons interested in the property subject to the power to the exclusion of the donee's wife, who survived him while under the law of his domicil he had died intestate and his wife was entitled to a one-third share of his estate and his children were entitled to equal parts of a two-thirds share.
A residuary clause in the will of a donee of a special testamentary power, in which he gave to persons who were within the terms of the power both his own property and property "over which I may have a power of appointment at the time of my death," was a valid exercise of the power.
An attempted exercise of a special testamentary power of appointment in partial performance of a contract previously made between the donee and his wife in contemplation of and to take effect only in the event of their divorce was invalid because in fraud of the power.
PETITION, filed in the Probate Court for the county of Norfolk on April 22, 1942.
The case was heard by Reynolds, J. From a decree entered by his order, the respondent Benjamin Pitman, Jr., alone appealed.
T. Allen, for the respondent Benjamin Pitman, Jr. J. B. Dolan, for the petitioner.
C. Gerstein, (L.
Nevas of Connecticut with him,) for Letteria C. Pitman, guardian.
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 resident of 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, $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; Dexter v. Attorney General, 224 Mass. 215; Hill v. Treasurer & Receiver General, 229 Mass. 474; Minot v. Paine, 230 Mass. 514; Hogarth-Swann v. Weed, 274 Mass. 125 , even though it...
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