Thompson v. Pew
| Decision Date | 23 May 1913 |
| Citation | 102 N.E. 122,214 Mass. 520 |
| Parties | THOMPSON et al. v. PEW et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Chas.
E. Shattuck, Jr., of Boston, pro se.
Wm. A Pew, Jr., of Gloucester, for respondent Pew.
Geo. D Burrage, of Boston, for respondents Thompson and others.
Under her husband's will Mrs. Cooke took a life estate in the residue of his property, 'with full power to dispose of the whole by will.' Intending to exercise this power she made a will, in the thirteenth clause of which she under the power bequeathed $10,000 to her brother William R Huntington, who bore no relation to her husband except that of brother-in-law. He died before her, leaving as his only heirs four children, all of whom are still living. The object of this petition is to ascertain to whom this $10,000 shall be paid.
There are three contentions made by the respondents respectively as follows: First, that it goes to the four children of William R. Huntington; second, that it goes to the residuary legatees named in the forty-third item of the will; and third, that it goes to Alice H. Pew under the will of Josiah H. Cooke, the donor of the power.
In logical sequence the first question is whether the legacy goes to the children of William R. Huntington. The general rule of common law is that if a legatee dies after the making of a will and before the death of the testator the legacy lapses. Ballard v. Ballard, 18 Pick. 41, 43. And it is conceded that the same rule would apply in case of the death of an appointee in a will before that of the appointor. But to this rule there long has been an exception, the present expression of which appears in R. L. c. 135, § 21, as follows: 'If a devise or legacy is made to a child or other relation of the testator, who dies before the testator, but leaves issue surviving the testator, such issue shall, unless a different disposition is made or required by the will, take the same estate which the person whose issue they are would have taken if he had survived the testator.' If this statute can be applied in the interpretation of the thirteenth clause of the will, the question must be answered in the affirmative; otherwise in the negative.
R. L. c. 135, in which this section occurs, is entitled 'Of Wills,' and is the general chapter which inter alia declares what persons may make wills, prescribes the manner in which wills may be executed, makes provision for their safe keeping during the life of the testator, and gives certain rules of construction among which is the section above quoted. In the first section it speaks only of the will of a person who is disposing of 'his property real and personal,' and nowhere is there any express mention of a will made in the execution of a power except in section 9, which exempts from the revocation of a will by marriage 'a will made in the exercise of a power of appointment.' A study of the chapter indicates that it is dealing primarily with the will of a person dealing with his own property. It is to be noted also that technically there is a difference between a devise or legacy and a gift in the form of a testamentary appointment under a power. 'The theoretical distinction is, that a will concerns the estate of the testator, and an appointment under a power that of the donor of the power.' W. Allen, J., in Osgood v. Bliss, 141 Mass. 474, 477, 6 N.E. 527, 530 (55 Am. Rep. 488). If therefore our attention be confined to the statute alone, it would seem as if it could have no office in the interpretation of the clause in question.
But there is something else to be considered. A power may be to appoint by deed or will, either or both, according to the terms of the instrument creating the power. If the appointment is to be by deed, then the instrument must be signed, sealed and delivered like a deed, and when it is so executed and delivered the appointment is made and is irrevocable. If the appointment is to be by will, then the instrument must be executed in the manner prescribed by law for the execution of wills. And even when it is executed it is not irrevocable. The document, like a will, is ambulatory during the life of the appointor and may be at any time revoked in whole or in part by him. Even after the death of the appointor the document to be effectual must be allowed by the probate court as the will of the appointor. In other words, when the appointment is to be made by will, the legal inference is that so far at least as respects the execution of the instrument and its final establishment as the will of the appointor, the rules of law prescribing the manner of the execution and probate of a will shall apply. Osgood v. Bliss, ubi supra, 141 Mass. 477, 6 N.E. 527, 55 Am. Rep. 488; Heath v. Withington, 6 Cush. 497, and cases cited. And this is so even if the document in which the appointment is made is void as a will of a married woman as to her own property named therein. Heath v. Withington, supra.
How shall the language of the document be construed? On this subject the following illuminating words are used by Jessel M. R., in Freme v. Clement, L. R. 18 Ch. 499, 504: ...
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Dow v. Atwood
...general power of appointment may be considered a property interest passing under an anti-lapse statute is not applicable. Thompson v. Pew, 214 Mass. 520, 102 N.E. 122; Daniel v. Brown, 156 Va. 563, 159 S.E. 209, 75 A.L.R. 1377 and annot.; 5 American Law of Property § 23.47; Restatement, Pro......