Opinion
March 19, 1945.
April 9, 1945.
Trusts — Inter vivos trusts — Construction — Condition precedent — General power of appointment.
1. Where a settlor's intention is apparent from the language of his deed of trust, there is no occasion to resort to rules of construction or decisions in other cases in construing it. [25]
2. Where an inter vivos trust reserved a life estate to the settlor and provided that upon his decease an annuity should be paid to his wife, who was also given a general power of testamentary appointment over a specified amount, with the further provision that if the wife should elect to take against his will the provisions made for her in the deed of trust including her power of appointment should be void, it was Held that, as a condition precedent to the creation of the power of appointment, the wife was required to survive the settlor and also to elect to take under the terms of his will. [24-5]
Argued March 19, 1945.
Before MAXEY, C. J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES, JJ.
Appeals, Nos. 45-51, incl., March T., 1945, from decree of O. C. Washington Co., Nov. T., 1933, No. 54, in case of inter vivos trust of C. Frank Cardon, deceased. Decree affirmed.
Audit of account of trustees inter vivos. Before WRENSHALL, P. J.
Adjudication filed dismissing claims of beneficiaries in inter vivos trust agreement. Exceptions to adjudication dismissed and final decree entered. Exceptants appealed.
Richard G. Miller and Forest G. Moorhead, with them Miller Schmidt and Moorhead, Marshall Sawyer, for appellants.
George I. Bloom and J. Boyd Crumrine, with them H. Russell Stahlman, I. C. Bloom, Robert V. Maine, Frank G. Smith, David M. McCloskey, Hugh E. Fergus and Frank E. Pireaux, for appellees.
These appeals concern the construction of an inter vivos deed of trust and its amendments. The settlor reserved a life estate, and upon his decease, his trustees were directed to pay an annuity to his wife, who was also given a general power of appointment, by will, over a sum not to exceed $40,000. It was provided, however, that if his wife should elect to take against his will, the provisions made for her in the deed of trust, including her power of appointment, should be void, and the fund which would otherwise have been subject to her power of appointment should be added to the corpus of his estate. The wife, by her will, attempted to exercise the power of appointment, but died in the lifetime of her husband, the settlor. The appointees under the wife's will claim the fund.
We agree with the learned auditing judge that settlor's wife never possessed the power of appointment, because as a condition precedent to its creation, the wife was required to survive the settlor and also to elect to take under the terms of his will. All of the provisions of the trust indicate clearly that the power of appointment was contingent upon the wife's survival. They presuppose that she would be living at the time of settlor's death and capable of electing with respect to his will. Where the settlor's intention is so apparent from the language of the deed there is no occasion to resort to rules of construction or decisions in other cases.
The decree is affirmed; costs to be paid out of the corpus of the estate.