Huntington Appeal from Probate

Hinman, C. J. The appellants are the heirs at law of Jabez W. Huntington, and they also are the only heirs of his late father Zachariah Huntington. The appellees are the heirs of Mrs. Sally Ann Huntington, the widow of Jabez W. Jabez W. Huntington provided in' his will that the sum of seventeen thousand dollars should be invested by his executor, Zachariah Huntington, and the income thereof paid over to his widow during her life, and that upon her decease the principal should become the property of his father, if then alive, but if he should be dead at the decease of his widow, then that it should be paid over to such persons as the said Zachariah by his last will and testament might designate and appoint. Zachariah Huntington having died during the life, of the tes [533] tator’s widow, without having executed the power of appointment, and the widow having also died, the principal of this fund remains for distribution as intestate estate of Jabez W. Huntington, and the question is, whether the late widow, or her representatives, are entitled to a share of it in the same manner that they would have been had Jabez W. Huntington died without making any will, and had no agreement or arrangement been made in respect to it by the parties in interest since his decease. This question, if it rested entirely upon the question whether the will could in any manner affect the distribution of this fund as intestate estate, which it has become by the failure of Zachariah to take it by reason of his death before the decease of the widow, and his failure to make any appointment under the will would undoubtedly be one of some interest. If we can look at the will to aid us in determining with regard to the distribution, it seems very clear that the testator did not intend in any event that his widow should take any portion of the principal of this fund. He gave her the whole income from it during her life; and to this end he provided for a trustee to hold the fund until the event of her decease, at which time it was to go to his father, if alive, but if dead to his father’s appointee. The widow, therefore, during her life, never could have taken as a distributee, nor as the appointee of her father in-law, and it is hardly credible that the testator should have intended, or even anticipated the possibility, that her representatives should take any portion of this principal to the exclusion of his own right heirs. But we have not deemed it necessary to determine this question, and do not intend to discuss or determine it, because we are satisfied that if Mrs. Huntington ever had any intei’est in a portion of this fund she released it by the indenture of the 25th of May, 1848. It was claimed that the sole purpose of this indenture was to change the trustee. We do not so consider it. Had that been the only object the parties never would have entered into the covenants they did in respect to the disposition to be made of the fund after the decease of Mr. Huntington. All that was necessary for them to do to execute such a purpose was for Mr. Huntington to surrender or [534] give up the trust to Mr. Strong, and for Mr. Strong to accept it. Mr. Huntington alone, by the will, was to designate the person who was to take this fund, if he did not invest it in his own name. Why then was Mrs. Huntington a party to the instrument, unless there was something for her to do or to relinquish. The language of this indenture is very explicit in respect to the disposition of the fund after the death of the widow. It was to be “ transferred and delivered to said Zachariah if in life, or in case of his decease then to such per. son or persons as may be entitled to have and receive the same under the last will and testament of said Zachariah, or to his heirs at law in case he shall.not by his will otherwise provide.” Now it may well be that had the heirs at law of Zachariah been different persons from the heirs of his son, Jabez W., this provision as against the latter would have been of no force whatever, since the power of appointment could only be executed by the will of Zachariah. The parties understood this, for they provide that it shall be transferred and delivered to him if alive, or to such person or persons as may be entitled to it under his will, that is, in other words, to his appointees by will, or to his heirs at law in case of his making no appointment. Surely it was competent for the widow to release to the persons who were entitled to a portion of this fund that portion to which she might otherwise be entitled, and we think she did so release it by this instrument to the heirs at law of Zachariah, on his death without making any appointment by will; and they being the same persons who were entitled to take a portion of the fund, as the next of kin of Jabez W., are entitled to hold under this instrument the remaining portion as against the widow or her next of kin. Mrs. Huntington knew that Zachariah by virtue of his power of appointment could dispose of this fund as he pleased in case of his not surviving her, and in order to secure it to the next of kin of her deceased husband she might well be willing to provide in this mode against his making any appointment prejudicial to their interests, presuming that they would be, as we ■find now is the case, the same persons who are the heirs at law of Zachariah. [535] It was understood on the argument that the object of the parties was the settlement of their rights to this fund, and therefore that any technical objection to a reversal of the decree of probate arising from the circumstance that <|irs. Huntington’s interest in it might be held to have been released or assigned was waived. We therefore advise the superior court to reverse the decree of probate appealed from. In this opinion the other judges concurred.