Seward v. Kaufman

• Decision Date: 16 September 1935
• Citation: 180 A. 857
• Parties: SEWARD et al. v. KAUFMAN et al.
• Court: New Jersey Court of Chancery

180 A. 857

SEWARD et al.

v. KAUFMAN et al.

Court of Chancery of New Jersey.

Sept. 16, 1935.

Syllabus by the Court.

1. Where the donee has a general power of appointment by will, and executes this power, the property appointed is deemed in equity part of his assets, and subject to the demands of his creditors in preference to the claims of his voluntary appointees or legatees.

2. Creditors of the donee, where the power is executed, can lay claim to the appointed estate only to the extent that the donee's own estate is insufficient to satisfy their demands.

3. Whether the power of appointment was or was not exercised in the instant case, the property that was subject to appointment is not subject to distribution as part of the estate of the donee. The executor of the estate of the donee took nothing in the property appointed. The donee enjoyed the right merely to indicate the manner of disposition.

Bill by Kate S. Seward and others, executors of the estate of George F. Seward, deceased, against Marian S. Kaufman and others, wherein, on the death of Kate S. Seward, her executor, Leon E. Spencer, filed a petition for instructions. On bill, etc., and on petition.

Decree in accordance with opinion.

Pitney, Hardin & Skinner, of Newark, for Leon E. Spencer, executor of Kate S. Seward's estate.

Stuart A. Young, of Newark, for George O. Seward.

Blair Reiley, of Newark, guardian ad litem of Elizabeth Katherine Woods and Patricia Woods, infants.

STEIN, Vice Chancellor.

George F. Seward, late of East Orange, this state, died November 28, 1910, leaving a last will and testament probated December 9, 1910, in which he left his residuary estate to his executors, to invest and apply the net income to the use of his wife, Kate S. Seward, for life, in language as follows: "All the rest, residue and remainder of my estate of every nature and description and wheresoever situate of which I may die seized or possessed or to which I may be in any manner entitled at the time of my decease, I give, devise and bequeath unto my Executors hereinafter named whom I constitute as Trustees for the purpose, to hold the same in trust and to invest and keep the same invested in the manner hereinafter provided, and to recover and receive the income and revenue thereof and to apply the net income and revenue thereof to the use of my wife KATE SEWARD for and during her natural life, and upon her death to pay over the principal thereof to such persons and in such amounts or proportions and in such manner as she may by her Last Will and Testament direct, and if she should die intestate, then to divide the principal thereof equally among my children living at the time of the death of my said wife, and the issue then living of any deceased child or children, per stirpes and not per capita, the issue of any deceased child to take the share the parent would have been entitled to receive if living."

Kate S. Seward, his wife, George O. Seward, his son, and Hjalmar H. Boyesen, were appointed as executors and trustees, and on November 29, 1921., brought their bill of complaint praying leave to account; that George O. Seward and Hjalmar H. Boyesen, be discharged, and a new trustee appointed to act in their place and stead. Decree was entered approving the account and discharging as trustees George O. Seward and Hjalmar H. Boyesen and appointing Charles Oakes of New York as cotrustee. The decree, among other things, reserved the right to apply for further directions in future.

Charles Oakes, substituted trustee, died August 2, 1927, and Gertrude Ethel Oakes, administratrix with the will annexed of his estate, accounted in the Essex county orphans' court for his administration, in which accounting Kate S. Seward did not join.

Kate S. Seward continued to administer the estate until November 15, 1934, when she died, testate, and in her will, probated in New York February 4, 1935, appointed Leon E. Spencer the present petitioner as her executor. The pertinent portions of her will read as follows:

(a) "I direct that my debts shall be paid as soon as practicable after my death." Paragraph second.

(b) "All my clothing, silverware, furniture, pictures, paintings, bric-a-brac and other personal effects, expressly including therein all articles in respect of which I have a power of appointment under the will of my late husband George F. Seward, who died on the 28th day of November, 1910, such will having been admitted to probate in the County of Essex in the State of New Jersey, on the 9th day of December, 1910, I give and bequeath to Leon E. Spencer, Counsellor-at-law of the City of New York absolutely." Paragraph third.

(c) "I give and bequeath to my son George O. Seward, pursuant to his deceased father's expressed wish, all my right, title and interest, if any, in all or any shares of the capital stock of VIRGINIA LABORATORY COMPANY, a corporation organized and existing under the Laws of the State of New York, and being part of the property of my late husband over which I have power of appointment and disposal under Article II of his aforesaid Last Will and Testament." Paragraph fourth.

(d) "I give and bequeath to Woodlawn Cemetery, a New York corporation, out of the property of my late husband, over which I have power of appointment and disposal under Article II of his Last Will and Testament," the sum of One Thousand ($1,000) Dollars in trust, to use the income derived therefrom for the perpetual care and maintenance of the plot in the cemetery owned and maintained by said Woodlawn Cemetery where my husband's remains are buried, and where I wish my remains likewise to be buried." Paragraph fifth.

(e) The residuary estate is disposed of as follows:

"All the rest, residue and remainder of my estate, real, personal and mixed, wherever situated and expressly including the property of my late husband over which I have the power of appointment and disposal under Article II of his aforesaid Last will and testament, I direct my executor hereinafter named and/or his successor duly appointed and qualifying as such, to divide into four equal parts:

"(A) One such equal part or share, I give, devise and bequeath absolutely to my daughter Anne L. Seward;

"(B) One such equal part or share, I give, devise and bequeath absolutely to my daughter Marion S. Kaufman;

"(C) One such equal part or share, I give, devise and bequeath absolutely to my son George O. Seward.

"In the event of the death of any of my aforesaid children prior to my death, I give, devise and bequeath his or her share to his or her issue, or the issue of deceased issue surviving, per stirpes and not per capita. The share or shares of any of my said children who may have predeceased me without leaving issue or issue of deceased issue, me surviving, I give, devise and bequeath in equal shares to any surviving child or childrent, or issue of deceased child or children, per stirpes and not per capita.

"(D) The remaining one-fourth part or share I give, devise and bequeath unto my daughter Marion S. Kaufman and Leon E. Spencer hereinafter named as my executor, IN TRUST NEVERTHELESS, to invest the same and to keep the same invested, to collect and recover the interest, revenue and income thereof and to apply the same to such purpose as they may, in their sole and unlimited discretion, deem advisable for the support, maintenance and education of my grand-daughter, Katherine Woods, one of the two children of my deceased daughter, Emma Seward Woods; not in any wise limiting the exercise of such discretion, but including expenditures for foreign travel, musical education and other expenditures for what are commonly termed 'luxuries', when and if such expenditures seem advisable; and upon my said grand-daughter reaching the age of twenty-one years to then pay over to her the then unexpended interest, revenue and income of said trust fund and thereafter to pay over to her the net interest, revenue and income of said trust fund in quarterly installments, in each year until she reached the age of thirty years; and upon my said grand-daughter reaching the age of thirty years, then to pay over the principal and unexpended income of said trust fund to her, but in case my said grand-daughter shall die before reaching said age, then, upon her death, I direct my said trustees to pay over said principal and unexpended income of said trust fund to her then living issue, per stirpes and not per capita, and if there be no such issue then living, then to Patricia Woods if she be then thirty years of age and if she be not thirty years of age then I direct my said trustee or trustees to pay over to Patricia Woods the net interest, revenue and income of said trust fund in quarterly installments in each year until she reaches the age of thirty years, and upon my said grand-daughter reaching the age of thirty years, then to pay over the principal and unexpended income of said trust fund to her, but in case both my said grand-daughters shall die before reaching thirty years, I direct my trustee or trustees to pay over said unexpended income and principal of trust funds to my issue then living per stirpes and not per capita.

"In constituting my daughter, Marion S. Kaufman trustee of my grand-daughter's property, I am following not only my own desire, but also the desire of my deceased daughter, the mother of my said grand-daughters, as expressed by her to me." Paragraph sixth.

The petition of Leon E. Spencer, executor, prays:

(1) That he be substituted as a party in place of Kate S. Seward;

(2) That he, in his capacity as executor of...