Sewall v. Wilmer

• Decision Date: 04 January 1882
• Citation: 132 Mass. 131
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Samuel E. Sewall & another, trustees, v. Skipwith Wilmer & others

132 Mass. 131

Samuel E. Sewall & another, trustees, v. Skipwith Wilmer & others

Supreme Court of Massachusetts

January 4, 1882

Argued January 24, 1881; September 7, 1881.

Suffolk.

Decree for the husband.

E. H Bennett, for the husband.

F. W Hurd, for the children.

OPINION

Gray C. J.

Frederic Tudor of Boston, who died in 1864, by his will, which was duly admitted to probate in this Commonwealth, devised the residue of his estate, real and personal, in trust to the use of his children in equal shares till their arrival at the age of twenty-one years or marriage within that age; and "as to, for and concerning the share that shall hereunder be coming to" any daughter at her marriage or coming of age, "this to be held by said trustee in trust and to her use" till such marriage or coming of age, then in trust to convey "one half of her share," together with half of any accumulations of income, to her absolutely, discharged of all trusts; and "as to and for the other half share of my said daughter, this to be held by said trustee to her sole and separate use, freed from the control or interference of her husband, during her natural life," yielding and paying the income to her quarterly on her sole and separate written order therefor, "and upon her death, then upon trust to convey, pay and deliver, or hold the same, to the use of such persons, or for such uses, estates, and subject to such provisions, limitations and agreements, as my said daughter shall, by any deed or writing to be by her signed, sealed and delivered in presence of three or more credible witnesses, or by her last will and testament in writing, or by any writing purporting to be her last will and testament, to be by her duly executed in the presence of a like number of credible witnesses, give, direct, limit and appoint, and, in default of such will or appointment, then upon trust to hold the same to the use of her children and their heirs respectively as tenants in common, and the legal representatives of any such child or children who may have deceased to be entitled to the same share as his or their parent would have been if then living; and in case my said daughter shall die without issue, and without having made any testamentary disposition or appointment of the uses thereof," then to the testator's heirs at law.

His daughter Delia in 1871 married Skipwith Wilmer of Baltimore, in the State of Maryland, and had four children by him, two of whom survived her, and she resided with her husband at Baltimore until her death in 1879. In 1872, a month before the birth of her oldest child, and having by the law of Maryland full testamentary capacity as if she were unmarried, she signed and sealed in the presence of three witnesses a will, which was duly admitted to probate in Maryland, and also as a foreign will in this Commonwealth, the whole of which, except the formal parts and the appointment of her husband to be sole executor, was as follows: "I devise and bequeath all the real and personal estate to which I shall be entitled in law or equity at the time of my decease unto my husband Skipwith Wilmer aforesaid, his heirs and assigns, absolutely."

At the times of executing her will and of her death, the trustees, who had been appointed by decree of the probate court in this Commonwealth under the will of her father, and who resided here, held in trust for her property, real and personal, to the amount of $ 80,000, all the real estate being situated in this Commonwealth; and she was the owner in her own right of personal property to the amount of $ 20,000, and of real estate in this Commonwealth to the amount of $ 40,000, and also of an equity, worth $ 8000, of redeeming other real estate in this Commonwealth from a mortgage made by her and her husband; parts of this equity of redemption and of her other real estate being subject to the dower of her father's widow.

The present suit is a bill by the trustees for the instructions of the court. Her husband and her two surviving children are made parties defendant, and have filed answers presenting the question whether the husband or the children are entitled to the property so held by the plaintiffs in trust for her.

It was suggested, though not strongly pressed, in behalf of the children, that, even if her will is expressed in apt terms to pass this property to her husband, yet the children are entitled to a share of it, under the Gen. Sts. c. 92, § 25, by which it is enacted that, "when a testator omits to provide in his will for any of his children, or for the issue of a deceased child, they shall take the same share of his estate, both real and personal, that they would have been entitled to if he had died intestate; unless they shall have been provided for by the testator in his lifetime, or unless it appears that such omission was intentional, and not occasioned by accident or mistake." But it is a sufficient answer to this suggestion, that the statute is evidently limited to estate of a testator, to which his children would have derived title from him, under the statutes of descents and distributions, if he had made no will; and has no application to estate which was not vested in him, in which he had no inheritable title, but a power of appointment only, and which, in case of his failure to execute the power, his children could not have claimed under him as his heirs or next of kin, but only as devisees or legatees under the will of the person who created the power. Blagge v.Miles, 1 Story 426, 442.

The principal point in controversy between the husband and the children of Mrs. Wilmer is whether her will is a good execution of the power conferred on her by the will of her father; and the arguments upon this point have presented three questions: 1st. Whether this is a good execution under the law of Maryland? 2d. Whether it is a good execution by the law of Massachusetts? 3d. Which law must govern the case?

The decisions of the Court of Appeals of Maryland, which are made part of the report on which the case has been reserved for our determination, clearly show that the law is settled in that State, in accordance with English cases decided since the American Revolution, that "the intention to execute a power of appointment by will must appear by a reference in the will to the power or to the subject of it, or from the fact that the will would be inoperative without the aid of the power;" Mory v. Michael, 18 Md. 227, 241; Michael v. Morey, 26 Md. 239, 259; Maryland Society v. Clendinen, 44 Md. 429, 435; and that it is also settled, upon principles everywhere recognized, that the admission of a will to probate establishes only its validity as a testamentary instrument, and does not determine the extent of its operation. Michael v. Baker, 12 Md. 158. Schley v. McCeney, 36 Md. 266, 275. As the will of Mrs. Wilmer does not mention the power, nor the subject of it, and as she had other property of her own upon which her will could operate, it is clearly not a sufficient execution of the power under the law of Maryland.

But in this Commonwealth the decisions in England since our Revolution and before the St. of 7 Will. IV. & 1 Vict c. 26, § 27, have not been followed; the court has leaned toward the adoption of the rule, enacted by that statute as to wills thereafter made in England, namely, that a general devise or bequest should be construed to include any real or personal estate of which the testator has a general power of appointment, unless a contrary intention should appear by his will; and it has been adjudged that the mere facts that the will relied on as an execution of the power does not refer to the power, nor designate the property subject to it, and that the donee of the power has other property of his own upon which...