Opinion
November, 1910.
Elon S. Hobbs, for plaintiff.
Robert P. Beyer, Deputy Attorney-General, for defendant the People of the State of New York.
Arnon L. Squiers (George I. Wooley, of counsel), for defendant Sarah J.R. Fiske, as executrix of Thomas S. Ryder.
This action was brought by plaintiff for the specific performance of an alleged contract made by one Mary A. Sewell to leave to the plaintiff all her property, and also on a claim for services alleged to have been rendered by the plaintiff to the said Mary A. Sewell in the latter's lifetime.
The will of Mary A. Sewell, dated March 13, 1905, after devising certain specific articles of jewelry, personal ornaments and wearing apparel and directing the executor to purchase a suitable burial plot and monument, contained this provision: "The balance of my estate to be distributed by executor in his discretion or as may be hereafter mentioned in codicils or written additions to this will." The will then named Thomas S. Ryder as executor.
Mrs. Sewell died March 9, 1906, having made no "codicils or written additions to this will" and leaving no known next of kin. The will was admitted to probate about May 11, 1906; Dr. Ryder renounced as executor, and letters of administration with the will annexed were thereupon issued to another. Dr. Ryder died June 25, 1906, and his executrix now asserts by a counterclaim in the above action to be entitled to the entire residuary estate of Mrs. Sewell by virtue of the above residuary clause in her will. The Attorney-General, in behalf of the People, has moved to dismiss the counterclaim, on the ground that no beneficial power was created by this residuary clause; that said power never vested because of the executor's renunciation, and that, accordingly, the residue of this personal estate escheated to the People.
As Mrs. Sewell never made any codicil or written additions to her will or in any way limited the exercise of discretion by her executor in the distribution of her residuary estate, the clause has the same legal effect as if it read, "The balance of my estate to be distributed by executor in his discretion." Such a clause confers an absolute power of disposition, a general and beneficial power with respect to the residuary estate, by which an absolute title passed. Matter of Moehring, 154 N.Y. 423; Matter of Perkins, 68 Misc. 255; Laws 1896, chap. 547, § 111; Laws 1897, chap. 417, § 2.
There was a different residuary clause in Gross v. Moore, 68 Hun, 412; affd., 141 N.Y. 559, where the residue of the personal estate was bequeathed to the executor "to be distributed by him according to instructions given to him by me," thereby vesting neither the absolute power of disposition nor the beneficial interest.
The fact that Dr. Ryder renounced as executor does not take the case out of the rule, because the power of disposition, being wholly discretionary, was not annexed to the office of executor, but was given to him as a person, and he might accept and execute it, although he failed to qualify as executor (Dunning v. Ocean Nat. Bank, 61 N.Y. 497, at 502); nor is the rule inapplicable because the residuary clause did not designate the donee of such discretionary power by name. Kinnier v. Rogers, 42 N.Y. 531.
Dr. Ryder, therefore, took as an individual, and as such had the absolute power of distribution of the residuary estate; he could have given it to any one to whom he saw fit, including himself. As was said in Amherst College v. Ritch, 151 N.Y. 282, 323:
"If * * * the matter is left wholly to his will and discretion, no secret trust is created, and he may, if he chooses, apply the legacy to his own use. When it clearly appears that no trust was intended, even if it is equally clear that the testator expected that the gift would be applied in accordance with his own wishes, the legatee, if he has made no promise, and none has been made in his behalf, takes an absolute title and can do what he pleases with the gift."
The fact that Dr. Ryder as executor made no distribution of the estate leaves the same to vest by operation of law, by which absolute ownership thereof came to him.
The motion to dismiss the counterclaim is denied.
Motion denied.