Cameron v. Crowley

Garrison, V. C. (after stating facts). The sole question is whether, under the language of the will of Alexander J. Cameron vesting power in his daughter Alice E. Cameron, “to dispose of the fund in question to and among my grandchildren, in such shares and proportions 'and in such manner as she shall think right and proper, as X have full confidence in her discretion and fairness,” an exclusive or non-exclusive power of appointment was vested in Alice E. Cameron. The industry of the various counsel in this case has resulted in briefs citing cases from many jurisdictions concerning this subject-matter. I do not find it necessary, however, to consider any other than those in our own courts. It has been well settled in this court by the previous decisions thereof that such a power as is contained in the language just quoted is non-exclusive. Lippincolt v. Ridgway, 10 N. J. Eq. (2 Stock.) 164 (Chancellor Williamson, 1854); Wright v. Wright, 41 N. J. Eq. (14 Stew.) 382 (Chancellor Runyon, 1886); Inglis v. McCook, 68 N. J. Eq. (2 Robb.) 27 (Chancellor Magie, 1904); see, also, Den v. Crawford, 8 N. J. Law (3 Halst.) 90 (at p. 98) (Supreme Court, 1825). In Lippincott v. Ridgway, supra, the language “unto such of the brothers and sisters,” &c., was held to give to the donee of the power discretion to select which of the said persons should have the fund, but in the same will the language “that my said daughter shall in such case have power to dispose of the same among her brothers and sisters and their children in such proportions as she may think fit” was construed to confer a nonexclusive power, and it was held that each of the brothers and sisters was entitled to a portion of the fund. In Wright v. Wright, supra, the power “to dispose of the same between my children and grandchildren as she may think proper,” was held to be a non-exclusive power. And these cases were cited and approved in Inglis v. McCook, supra, in which it was held that the power to divide the same among the lawful issue of the donor as the donee should direct was a non-exclusive power. [685] I cannot perceive any difference between the language of the various wills construed above and the language of the will under consideration in any substantial particular. The power under consideration is to dispose of the fund to and among the grandchildren. It must, therefore, to satisfy this-language, go to the said grandchildren and be disposed of among them. If one is omitted it has not gone to the grandchildren. I think, therefore, both upon authority and reason, that this must be held to be a non-exclusive power. It is suggested that the use of the word “manner” by the donor implies the power of selection. The will provides that it shall go “to and among” the grandchildren “in such shares and proportions and in such manner” as the donee shall think right and proper. I cannot accede to this argument. The donor clearly indicates to whom it shall go, but leaves to the donee the power to determine the proportions and manner in which it shall go. The “manner” has reference to the way in which it shall be enjoyed, whether directly or in trust, immediately or at a postponed date, and other like matters. If authority is needed for such construction of the word “manner,” the following cases may be consulted: White v. Wilson, 1 Drewry 298; Seibels v. Whateley, 2 Hill Eq. 605 (S. C., 1837); Cowles v. Brown, 4 Call 477 (Va., 1803); Hill v. Jones, 65 Ala. 214 (1880); Maitland v. Baldwin, 70 Hun 267; 24 N. Y. Supp. 29 (N. Y., 1893); Boyle’s Estate, 5 W. N. C. 363 (Penna., 1878). It is also suggested that the fact that the donor recited in the clause granting the power that he had full confidence in the fairness and discretion of the donee is indicative of intention to vest in her the power of selection. I do not think this argument is sound. I think it does show that he intended to confide in her discretion and fairness as to the shares and proportions, and as to the manner in which the fund should be distributed. I do not think that it in any way indicates that because of his confidence he confided in her discretion the power of selection as to the persons. I may remark, in passing, that this whole matter has been set at rest in England by statute. Powers of Appointment Act, 37 and 38 Vic. c. 37 (1874). [686] I conclude in this case that the power vested in Alice E. Cameron was not validly exercised by her, and therefore there is a failure thereof, and as a consequence the fund goes as is directed by the will of the donor of the power, and is distributable among all of his grandchildren equally, par capita. Whether Alpin W. Cameron, the son of the complainant, who is a grandchild of the donor, has disentitled himself to a share by reason of the instrument referred to by the complainant in the bill I do not determine, since the instrument is not before me and the said Alpin W. Cameron is not a party. I will advise a decree as above indicated.