Schaaf's Estate, In re

• Decision Date: 03 June 1974
• Docket Number: No. 12440,12440
• Citation: Schaaf's Estate, In re, 312 N.E.2d 348, 19 Ill.App.3d 662 (Ill. App. 1974)
• Parties: In the Matter of the ESTATE of Kenneth A. SCHAAF, Deceased. Bruce THOMSON, as Special Administrator of the Estate of Kenneth A. Schaaf, Deceased, Plaintiff, v. Elsie L. NICOL, as Executor under the Will of Kenneth A. Schaaf, Deceased, et al., Defendants-Appellees, St. Louis Natural Hygiene Society et al., Defendants-Appellants, National Health Federation et al., Defendants.
• Court: Appellate Court of Illinois

Page 348

312 N.E.2d 348

19 Ill.App.3d 662

In the Matter of the ESTATE of Kenneth A. SCHAAF, Deceased Bruce THOMSON, as Special Administrator of the Estate of Kenneth A. Schaaf, Deceased, Plaintiff, v. Elsie L. NICOL, as Executor under the Will of Kenneth A Schaaf, Deceased, et al., Defendants-Appellees St. Louis Natural Hygiene Society et al., Defendants-Appellants National Health Federation et al., Defendants.

No. 12440.

Appellate Court of Illinois, Fourth District.

June 3, 1974.

Foreman, Rammelkamp, Bradney, Hall & Dahman, Jacksonville, for defendants-appellants; James R. Reilly, Jr., Jacksonville, of counsel.

Robert C. Hemphill, Jacksonville, for defendants-appellees.

SIMKINS, Presiding Justice.

This is an appeal from a decree interpreting Item 6 of the Will of Kenneth A. Schaaf, probated on March 31, 1971, which held, in essence, that the executor of said will, Elsie L. Nicol, held a valid testamentary, special, exclusive power of appointment to appoint certain described property and the residue of the estate to organizations to which she knew decedent to be interested in contributing. We agree with that interpretation.

Item 6 of the will provides:

'I hereby bequeath the property located at 206 Hart Street, Franklin, Illinois, together with the two (2) lots on East Street adjoining the rear of this property, together with the residue of my Estate to Mrs. Elsie L. Nicol under the following conditions: This property together with the personal property contained therein is to be transferred to her name, together with the residue of my Estate which shall be used for the upkeep and expenses involved in handling the property. It is my wish that if Mrs. Nicol so desires, she may sell, at any time, any of the personal property or real estate heretofore mentioned and that the proceeds from the sale of same be given to the organizations in which she knows I am interested in contributing.

In case of the decease of Mrs. Elsie L. Nicol before all the real estate, property, or residue of my Estate has been sold or disposed of in the way I have herein set forth, it is my wish that the remainder of my Estate, as set forth in Item 6 of this Will, be sold at private auction and the proceeds from such sale be divided equally among the following:

1. St. Louis Natural Hygiene Society, St. Louis, Missouri

2. Missouri League for Humane Education, St. Louis, Missouri

3. American Natural Hygiene Society, Chicago, Illinois

4. Natural Food Associates, Atlanta, Texas

5. Anti-Cruelty Society, 157 W. Grand Avenue, Chicago, Illinois

6. Illinois Citizens' Animal Welfare League, Chicago, Illinois

7. National Health Federation, Monovia, California

In other words, Mrs. Nicol will act on my behalf as an overseer in disposing of the above mentioned real estate and personal property according to the personal instructions I have given her for handling same.'

In interpreting this provision the trial court made the following findings: 1) The testator did not intend any of the clause provisions to benefit Mrs. Nicol personally; 2) The clause created in Mrs. Nicol a power in the nature of a trust; 3) The objects of the class are known to Mrs. Nicol and consist of organizations in which she knew the decedent to be interested in contributing; 4) The power given to Mrs. Nicol is a special power limited to a defined class; and 5) If the property is not appointed by Mrs. Nicol during her lifetime then the seven named organizations will become the beneficial owners thereof.

It is obvious from an analysis of Item 6 that the testator intended to create a special, exclusive, testamentary power of appointment and not a trust or a power in trust. Indeed, no particular words are necessary to create a power, and the power may be created by implication where it appears from the will that the power was intended to be created. See 30 I.L.P., Powers, § 3; Simes on Future Interests, sec. 59, 2d ed. The intent in the instant case is clear for the testator states that 'if (Mrs. Nicol) so desires, she may sell, at any time, any of the personal property or real estate heretofore mentioned and that the proceeds from the sale of same be given to the organizations in which she knows I am interested in contributing.' The giving of such discretionary power ('if she so desires') is clearly characteristic of a power of appointment and not a trust of a power in trust, for the latter generally impose mandatory duties on the trustee. See 72 C.J.S. Powers §§ 1, 6, 30, I.L.P. Powers § 2. The fact that the testator felt it necessary to specify the seven named charities as takers in default of appointment ('in case of the decease of Mrs. Elsie L. Nicol before all the (property) . . . has been sold or disposed of in the way I have herein set forth') is further indicative of the testator's intent to create a power of appointment.

The findings of the trial court are consistent with the above conclusion that the testator intended to create a testamentary, special, exclusive power of appointment. The trial court found that the testator did not intend to benefit Mrs. Nicol personally. However, Mrs. Nicol, the grantee of the power, need have no beneficial interest in the subject matter of the power to have a valid power to appoint the beneficial interest. See 72 C.J.S. Powers § 7; 30 I.L.P., Powers § 2; Palmer, The Effect of Indefiniteness on the Validity of Trusts and Powers, 10 U.C.L.A.Rev. 241, 272 (1963). Indeed, the testator specifically transferred to Mrs. Nicol legal title to the property, an act consistent with the traditional idea of a power of appointment being an event whereby the equitable ownership of property shifts to a transferee by the terms of the instrument creating the power. See Simes on Future Interests, sec. 55, 2d ed. The fact that legal title lies in the donee of the power does not transform the power into a trust, but is simply a convenient vehicle to facilitate a sale of the property involved. The trial court also found the power given to Mrs. Nicol to be a special power limited...