Old Colony Trust Co. v. Allen Et Al‪.‬

QUA, Justice. The petitioner as trustee under a declaration of trust executed by Preston V. Chapin under date of December 10, 1917, prays the instruction of the court as to the Disposition of the fund in its hands, which consists of securities and cash of an accounting value of a little over $11,000. The declaration of trust provided for the payment of the income to the settlor during his life and upon his death to Mary V. Hickey (who later married Andrew W. Phillips and is hereinafter referred to as Mrs. Phillips) during her life, with a general power to Mrs. Phillips to dispose of the principal 'by her will in such manner as she may direct.' There is no provision for the Disposition of the principal in the event of a failure to exercise the power. Preston V. Chapin died September 23, 1926. Mrs. Phillips died November 8, 1938, leaving a will executed before her marriage, wherein, after providing for the payment of her debts, expenses of last sickness, and funeral charges, she gave two legacies of $500 each, one to Maybelle D. Hull, which lapsed by the death of the legatee before the death of the testatrix, and the other to Frank Edson Sheldon, who is still living, and then left 'All the rest and residue of * * * property, wheresoever situated, either real or personal, to * * * two sisters Elizabeth E. McLean and Jeanette Phillips of Dorchester to be divided among them equally.' As it does not appear from Mrs. Phillips's will that it was made in contemplation of her subsequent marriage, that marriage revoked the entire will, unless the will was 'made in the exercise of a power of appointment,' in which case under the facts here existing the marriage would not revoke 'so much of the will as makes the appointment.' G.L.(Ter.Ed.) c. 191, § 9; Yerxa v. Youngman, 241 Mass. 251, 135 N.E. 117. And it is settled in this Commonwealth that a complete testamentary Disposition of his property by the donee of a power will be deemed, in the absence of anything to show the contrary, to include an exercise of the power. Amory v. Meredith, 7 Allen 397; Hassam v. Hazen, 156 Mass. 93, 30 N.E. 469; Stone v. Forbes, 189 Mass. 163, 168, 169, 75 N.E. 141; Worcester Bank & Trust Co. v. Sibley, 287 Mass. 594, 598, 599, 192 N.E. 31; Boston Safe Deposit & Trust Co. v. Prindle, 290 Mass. 577, 281, 195 N.E. 793; Slayton v. Fitch Home, Inc., 293 Mass. 574, 578, 200 N.E. 357, 104 A.L.R. 669. Compare Am.Law Inst. Restatement: Property, § 466 (included in chapter 26 on powers of appointment adopted May 13, 1938, to be included in vol. 3 of Restatement). Accordingly, the Probate Court admitted Mrs. Phillips's will to probate 'so far as the same can operate in law or in equity upon any and all property, real and personal, subject to * * * [Mrs. Phillips's] disposal by way of appointment' under the declaration of trust. The will operates only in so far as it constitutes the exercise of the power of appointment and not otherwise as a will, but its effect as an exercise of the power is in no degree diminished by the fact that it cannot further operate as a will.