Thayer v. Rivers

KhowltoH, J. The first question that arises in this case relates to the effect of that part of the ninth clause of the will of Rosalie G. Russell, which, after appointing the income for life of the property to which she was entitled under the will of her mother to the three children of her sister Geraldine, in equal shares, purports to give the remainder after the death of each of them, “ to such uses and for or to such person or persons, not including George C. Sheffield, ... as the decedent may by last will and testament, and notwithstanding any coverture, direct and appoint.” It is a familiar rule of law that a donee of a power of appointment who is given authority to choose and appoint an object of the power, according to his judgment and discretion, cannot [289] delegate the exercise of that discretion to another. An attempt to delegate a power of appointment considered merely as an attempted delegation is of no effect. Ingram v. Ingram, 2 Atk. 88. White v. Wilson, 1 Drew. 298. Webb v. Sadler, L. R. 8 Ch. 419. Carr v. Atkinson, L. R. 14 Eq. 397. Williamson v. Farwell, 35 Ch. D. 128. Burnaby v. Baillie, 42 Ch. D. 282. Topham v. Duke of Portland, 32 L. J. Ch. 257. On the other hand it has been held that one having an estate with a power of appointment under which he may give an absolute interest, or may put limitations on the use and enjoyment of that which otherwise would be such an interest, properly may exercise the power by giving one substantially the whole interest in the property and the whole control of it, in the form of a right of personal use and enjoyment during his life, with a right, by deed or will, to appoint persons who shall have it after his death. It has been held in some of these cases that it makes no difference whether the right of disposition in the object of the power to whom the property is appointed by the donee of the power, is by a deed or will, or by will alone. Morse v. Martin, 34 Beav. 500. Slark v. Dakyns, L. R. 10 Ch. 35. The creation of such a right is a kind of delegation of the power, but in its nature it is rather a statement of a mode of enjoyment, use, and disposition of that which is virtually an absolute interest. Such an execution of a power by a donee presupposes that the delegated power, if exercised, will give no larger interest than might have been given by the original doñee, and will not exceed the limits of the original power. It is plain that the appointment in the will of Rosalie G. Russell is good, so far as it gives her two nieces and her nephew life estates, respectively. That which remains of her appointment, when taken in connection with that which immediately precedes it, we think must be deemed a continuation of the exercise of the power of disposition of the share of her mother’s estate which was given to her under her mother’s will, and an attempt to delegate the selection of the beneficiaries. The power to her nephew and nieces to appoint to anybody except George C. Sheffield is void, because it purports to authorize an appointment to others than the objects of the power mentioned in the will [290] under which she was acting. She could dispose of the estate only among the lineal heirs of her mother Lydia Smith Russell, and she undertook to authorize her nephew and nieces to appoint to others than those heirs. Whether it was void for other reasons, it is unnecessary to consider. The attempt to create a power of appointment in her nephew and nieges being of no effect, the next question is, whether, notwithstanding the form of appointment which appears in the will of George R. R. Rivers, these words in Rosalie G. Russell’s will are operative, namely: “ and in default of such appointment shall convey the said share or proportion to the issue of the decedent in fee and absolutely in equal shares by representation,” etc. We are of opinion that they are. The appointment by Rivers under the invalid authority was as if there had been no appointment by him. She intended this disposition of the property to take effect if there should be no effectual appointment by her nephew and nieces. These words give the estate to the defendants, Robert W. Rivers and Henry F. Rivers, unless there is some good ground of objection to giving them effect. It is truly said in argument that this is a gift to a class, and that the class is to be determined as of the time of the death of Rosalie G. Russell, when her will takes effect. Whether we do or do not assume that the class would open to let in after-born children of George R. R. Rivers is not very material, for no children were born to him after the death of Rosalie G. Russell. If others had been born, even as to them the appointment would not have been too remote under the rule against perpetuities, for their father, George R. R. Rivers, the life tenant under the appointment, was living at the time of the death of Lydia Smith Russell, and the estate would vest in possession in the last of his children at the expiration of a life in being when the will of the original testatrix took effect. That he was not named in the original will is immaterial, for he is definitely referred to as life tenant in the appointment in the will of Rosalie G. Russell, which is to be taken in connection with the will of Lydia Smith Russell, and for this purpose read as if it were written into the former will. [291] The appointment to the defendants, Robert W. Rivers and Henry F. Rivers under the will of Rosalie G. Russell, in default of a valid appointment by their father, is good; and the trust estate held for the benefit of George R. R. Rivers during his life, is to be paid over to them in equal shares. Decree accordingly.