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Central Home Trust Co. v. Myer

Decided: April 14, 1960.

CENTRAL HOME TRUST CO., ETC. PETTIT A. MYER AND THE HOWARD SAVINGS INSTITUTION, SUBSTITUTED TRUSTEES UNDER THE DEEDS OF TRUST OF CHARLES R. MYER, DECEASED, PLAINTIFFS,
v.
PETTIT A. MYER, MARY ALLEN, (FORMERLY MARY APPLEBY) CHARLES R. MYER, JR., PETTIT A. MYER, EXECUTOR OF THE ESTATE OF MILLARD B. MYER, JOHN R. MYER, ELIZABETH M. DUNN, VIRGINIA M. HOWLAND, CHARLES R. MYER II AND PETTIT A. MYER, EXECUTOR OF THE ESTATE OF CHARLES R. MYER, DEFENDANTS



Mintz, J.s.c.

Mintz

Plaintiffs Pettit A. Myer and the Howard Savings Institution, substituted trustees under two indentures of trust executed by Charles R. Myer, deceased, seek approval of their First Intermediate Account of the administration of this trust and also a construction of, and instructions concerning, the two trust indentures and a subsequent indenture of trust which purports to amend the earlier two trust indentures.

The settlor, Charles R. Myer, by trust indentures dated June 23, 1924 and November 4, 1938, respectively, created irrevocable trusts. Paragraph First of the 1924 indenture reads as follows:

" FIRST: To receive, hold, manage, sell, invest, and reinvest the same and every part thereof, in the manner hereinafter specified, and to collect, recover and receive the rents, issues, interest, income and profits thereof, hereinafter called 'income', and after deducting the commissions of the Trustee as hereinafter provided, and the proper and necessary expenses in connection with the administration of the trust, to pay the same in quarterly instalments of equal amount, or as nearly equal as possible, to Anna B. Myer, wife of the party of the first part, [the settlor] for and during the term of her natural life, and upon her death, to pay the income in quarterly instalments in equal shares, to my children, Pettit A. Myer, Mary Appleby, wife of Richard H. Appleby, Charles Randolph Myer, Jr., and Millard B. Myer, for and during the term of each of their natural lives, and upon the death of each child, to whomever and in such shares as by his or her Last Will and Testament

he or she may appoint, and in default of such appointment, to his or her lineal descendants, per stirpes and not per capita , and if he or she leave no lineal descendants, him or her surviving, to my surviving child or children."

The provisions of Paragraph First of the November 4, 1938 trust were, for all practical purposes, identical to the provisions of Paragraph First of the earlier trust dated June 23, 1924.

On October 31, 1941 the settlor executed a third indenture of trust. This indenture recited the creation of the two earlier irrevocable trusts and further that "it was the purpose and intention" of the settlor "to make provision for the ultimate disposition of the trust property upon the happening of certain events mentioned and described in paragraph 'First' of each of said indentures." It goes on to say that it had been discovered that through "inadvertence and oversight, no provision is contained in said indentures for the disposition of the corpus of said trust property upon the happening of said events and that this indenture is required and rendered necessary to carry out the purpose and intention" of the settlor with respect to the disposition of the corpus of the trust property described in said indentures. The settlor then provided as follows:

" FIRST: To receive, hold, manage, sell, invest and reinvest the same and every part thereof, in the manner hereinafter specified, and to collect, recover and receive the rents, issues, interest, income and profits thereof, hereinafter called 'Income', and after deducting the commissions of the Trustee as hereinafter provided, and the proper and necessary expenses in connection with the administration of the trust, to pay the same in quarterly instalments of equal amount, or as nearly equal as possible, to Anna B. Myer, wife of the party of the first part, [the settlor] for and during the term of her natural life, and upon her death, to pay the income in quarterly instalments in equal shares, to my children, Pettit A. Myer, Mary M. Appleby, Charles Randolph Myer, Jr., and Millard B. Myer, for and during the term of each of their natural lives, and upon the death of each child to pay one-fourth of the corpus of the trust property to whomever and in such shares as by his or her Last Will and Testament he or she may appoint, and in default of such appointment, to his or her lineal descendants, per stirpes and

not per capita , and if he or she leave no lineal descendants, him or her surviving, to my surviving child or children." (Emphasis supplied.)

The trustee paid the income from the trusts to the settlor's wife, Anna B. Myer, until her death in 1941, and thereafter in equal shares to his four children. The settlor, Charles R. Myer, died in 1943 and in his will directed that his residuary estate be distributed in equal shares to his children. The settlor's children, Pettit A. Myer, Mary M. Appleby (now Mary M. Allen), Charles Randolph Myer, Jr. (the father of the defendants, John R. Myer and Elizabeth M. Dunn), and Millard B. Myer, survived both the settlor and his wife. In 1954 the original trusts were consolidated into one trust and the four surviving children received the income from it in equal shares.

Millard died testate on September 8, 1958. He left no lineal descendants. The parties agree that no specific mention is made in Millard's will of the power of appointment and that it contains no provision exercising the power. The third paragraph in Millard's will makes disposition of "all the rest, residue and remainder of my estate of whatever kind and wherever situate." A residuary clause, general in its nature, will not ordinarily suffice to exercise a power of appointment. Bank of New York v. Black , 26 N.J. 276 (1958); Lippincott v. Haviland , 93 N.J. Eq. 585 (Ch. 1922). Where there are no facts or circumstances indicating that the testator intended to exercise a power of appointment by means of a general residuary clause of his will, then it must be held that he failed to exercise the power of appointment. Methodist Episcopal Home for Aged of New Jersey v. Tuthill , 113 N.J. Eq. 460 (Ch. ...


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