Stone v. Forbes

• Decision Date: 11 September 1905
• Parties: STONE et al. v. FORBES et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

189 Mass. 163

75 N.E. 141

STONE et al. v. FORBES et al.

Supreme Judicial Court of Massachusetts, Norfolk.

September 11, 1905

COUNSEL

Joseph B. Warner, for trustees.

H. E Warner, for respondents.

OPINION

MORTON J.

This is a petition for instructions by trustees under the will of John M. Forbes. The question is whether J. Malcom Forbes, a son of John M. Forbes, who has deceased since his father leaving a will which has been duly allowed, has executed in and by his will a power of appointment which it is conceded was given to him by the will of his father, and whether the execution is a valid exercise of the power.

John M. Forbes, after establishing a fund called the 'Permanent Fund' for the benefit of his children, provided by a codicil, dated May 9, 1885, that 'my children shall have the power to dispose by will of their respective shares of the principal of said permanent fund to and among, but only to and among, such one or more of my direct descendants, in such proportions and on such terms, whether in trust for their benefit or otherwise, as they see fit, and I authorize and direct the trustees of said permanent fund, upon the decease of any child or children of mine, leaving such will or wills, to pay over, transfer, and convey the respective share or shares of such deceased child or children of mine to such descendants of mine, or for their benefit, as such deceased child or children of mine shall by their last wills direct.' By a codicil dated May 26, 1894, he further provided that 'in all cases where I have given the right to my children to dispose by will of their shares of the trust property to their descendants, I now give them the full right to put any and all bequests in trust, and also to make their bequests different in amount, if they deem it advisable so to do, giving more to one than to another, leaving it to the judgment of my children as to what is on the whole best for my descendants.' John M. Forbes died October 12, 1898. J. Malcom Forbes, the son, died February 19, 1904, leaving a will dated February 16, 1898, and a codicil, dated February 11, 1904, made a few days before his death. He begins his will by declaring that he disposes thereby of all the property of every kind of which I may be at my death seised or possessed, or over which I may then have any power of disposition whatsoever, whether the same be in this commonwealth or in any other state or country,' and by the codicil he expressly confirms the will 'in all particulars except so far as modified by this codicil.' The codicil contains nothing further material to the question before us. By his will, after bequests of $20,000 to each of his sons living at his death who shall then be 25 years of age and to his daughters who shall then be 23 years of age, and like provisions by means of trustees for the benefit of infant children, he gives the rest and residue to the same trustees, in trust to make certain specific conveyances and gifts not now material, and directs that the residue of the trust estate shall be divided into three parts, the income of one of which shall be paid to his widow so long as she lives, the principal to fall at her death into the other two-thirds, and the other two-thirds to be held in trust for the benefit in equal shares of children living at the testator's death and the issue by representation of any deceased child, the income on the shares to be paid to the respective beneficiaries, and as the sons arrive at the age of 30 years and the daughters at the age of 25 years the principal of their respective shares to be paid to them. There is also a provision that, if any child shall die before reaching the appointed age, the principal of his or her share shall be paid as he or she shall by will appoint, and, in default of such appointment, shall be disposed of as a part of such child's estate.

There is a stipulation between the parties that the facts admitted and alleged in the answers are agreed to so far as competent and material. Amongst the facts so alleged, and therefore to be taken as agreed to if material and competent, are the following, namely: That at the time when he made his will, in February, 1898, J. Malcom Forbes was wholly ignorant of the provisions of the will of his father, and had no knowledge of those provisions or of the power of appointment given to him by the will of his father till after the death of the latter; that when he made his will in February, 1898, he was possessed of a large property independent of any expectations from his father; and that after the death of his father his property largely increased, and at the time of making his will and at all times thereafter was sufficient for liberal provision for his wife and children under the terms of his will, without including therein the property over which he was given a power of appointment by his father's will. It is also alleged in one of the answers, and likewise to be taken as agreed, that the amount of the permanent share in the hands of the petitioner to be paid as the court shall direct is sufficient to satisfy the legacies of $20,000 given by J. Malcom Forbes to his children and to leave a large excess, and that if the entire amount of that share were to be included in the residuary estate passing under his will, for the purpose of ascertaining the third to be set apart for the benefit of the widow, such third could be set apart from property absolutely owned by him without encroaching on any sum that might be received from the petitioner in satisfaction of the provisions of the will of John M. Forbes.

It is settled in this commonwealth that a general power of appointment is well executed, in the absence of any thing to show a contrary intention, by a general residuary clause in the will of the donee of the power. Amory v. Meredith, 7 Allen, 397; Willard v. Ware, 10 Allen, 263; Bangs v. Smith, 98 Mass. 270; Sewall v. Wilmer, 132 Mass. 131; Cumston v. Bartlett, 149 Mass. 243, 21 N.E. 373; Hassam v. Hazen, 156 Mass. 95, 30 N.E. 469. And, whatever may have been the case formerly, that is now the law in England. Airey v. Bower (1887) 12 A. C. 263; Boyles v. Cook (1880) 14 Ch. 53. And both in this country and in England the fact that the power is created after the execution of the will does not prevent the will from operating as an execution of the power. Willard v. Ware, 10 Allen, 263; Osgood v. Bliss, 141 Mass. 474, 6 N.E. 527, 55 Am. Rep. 488; Airey v. Bower, supra. In England these results have been arrived at by means of statutory enactments; but in this commonwealth they have been reached by the application of general principles. In this case, however, the power is a special one, and it is contended that different rules apply. It is conceded that, in regard to special as well as in regard to general powers the question is one of intention on the part of the donee of the power. But it is contended that those claiming under a special power must show affirmatively that the donee intended to execute it, that it is doubtful whether a special power can be exercised by a will executed before the power was created, and that there is nothing in the case before us which fairly warrants the conclusion that the donee of the power intended to execute it.

On principle there would seem to be no just ground for a distinction between general and special powers, so far as relates to the execution of the power before or after it is created. It may be that, by reason of its conditions or limitations, the reasons are stronger for holding that a special power cannot be executed by anticipation than for holding that a general power cannot; but they do not seem to us enough stronger to warrant us in saying that in one case the power can be executed by anticipation and in the other that it cannot. A general power of appointment is hardly less within the range of expectation than a special power. Prior to the wills act, so called (St. 1 Vict. c. 26, § 27), it was the law of England that a party claiming under a power must show that the donee intended to execute it; the presumption being that he had not executed it unless the contrary plainly appeared. Amory v. Meredith, supra; Mills v. Mills (1886) 34 Ch. D. 186, 194; Foulkes v. Williams (1889) 42 Ch. D. 93. The wills act changed this with regard to general powers, but, in consequence of the construction given to the act by the courts, left special powers unaffected. Hayes v. Turnbull (1900) 2 Ch. 332; s. c. on appeal (1901) 2 Ch. 529; Foulkes v. Williams, supra.

In regard to general powers the rule now is that a general devise of property, real or personal, is presumed to include a general power of appointment, unless the contrary appears from the will. 1 Jarm. Wills (6th Ed.) *634, 635. In regard to special powers the rule remains the same as laid down before the passage of the wills act respecting powers generally. If it were necessary to determine the question, we should hesitate to follow the rule laid down by the English cases in regard to special powers of appointment. There is certainly less reason for doing so since Amory v. Meredith than before. There would seem to be no good reason why the question whether a special power of appointment had been exercised should not be determined by the same rules that are applied in other cases to the construction or interpretation of wills, or why the distinction between a power and property, which has resulted in many instances, as courts have been compelled to admit, in defeating the intention of the testator, should be adhered to in cases where, as in the present, the donee of the power has the use of the property for his life, and may not unnaturally or unreasonably have failed to distinguish between property strictly and technically...