Curley v. Lynch

The provisions made by Eugene Lynch in his will for the benefit of his wife lapsed and became of no effect by reason of her decease in his lifetime. She was not a “ relation of the testator ” within the meaning of those words in R. L. c. 135, § 21. Esty v. Clark, 101 Mass. 36. Kimball v. Story, 108 Mass. 382, 385. Horton v. Earle, 162 Mass. 448. And the power of appointment given to her fell with the life estate which preceded it. That power did not and could not come into existence until the death of Lynch himself. And as his wife, the only person who could have exercised the power, was dead before that time, the power itself never came into existence. It is as if no such power had been created by the will of Lynch. Jones v. Southall, 32 Beav. 31. Griggs v. Gibson, 35 L. J. (N. S.) Ch. 458. Sharpe v. M’Call, [1903] 1 Ir. 179.

If we assume that the language of Mrs. Lynch’s will could be regarded as an exercise of the power which she would have had under her husband’s will if she had survived him, then we may also assume that the mere fact of her appointment having preceded the creation of the power under which it was made would not have prevented it from taking effect. Stone v. Forbes, 189 Mass. 163, 168. Osgood v. Bliss, 141 Mass. 474, 476, 477. Willard v. Ware, 10 Allen, 263. Boyes v. Cook, 14 Ch. D. 53. Airey v. Bower, 12 App. Cas. 263. But the difficulty here is not a mere question of time ; it goes deeper than that. Mrs. Lynch never enjoyed a power of appointment at all. In all the cases above referred to the power was vested in its donee when his appointment took effect. But here there could be no power in existence until the husband’s death, and there never was a time when Mrs. Lynch had any such power vested in her. It follows that any attempted appointment by her was a mere nullity.

But it has been. contended that Eugene Lynch adopted the provisions of his wife’s will and by reference incorporated them into his own will. Dexter v. Harvard College, 176 Mass. 192. Allen v. Boomer, 82 Wis. 364. Goods of Limerick, 2 Rob. Eccl. 313. Undoubtedly he might have done so, as it appears that *293his will was made after hers and with knowledge of its contents. Nor do we doubt that it was competent to prove these facts. But his language, even considered in the light of these facts,' falls far short of the effect contended for. The words that he used were that the fund should “ be, as soon as practicable, paid and delivered free and discharged from any and all trusts under this my will, as my wife shall in and by her last will and testament devise and bequeath the same.” These words refer unmistakably to whatever last will his wife should leave at her decease, whenever she might execute it, and not solely to the will which, as he knew, she had then executed, but which until her death was still ambulatory, and could be altered or revoked as she might choose. He made no reference in terms to that particular will. This was not a reference in clear and precise terms to an existing document plainly and specifically identified; it was the creation of a general power which his wife might exercise by any future will. He did not restrict his bounty to the particular beneficiaries whom she had already named; lie intended that this part of his estate should go to those to whom she might in future appoint it by any new and final will that she might make. He did not seek to incorporate into his own will the specific provisions which he had read in hers. The industry of counsel has referred us to a multitude of decisions upon this subject; but we know of none which could be. wrested into a support of the contention that has been made. It is enough to refer to some of these cases: Newton v. Seaman's Friend Society, 130 Mass. 91; Thayer v. Wellington, 9 Allen, 283; Bryan's appeal, 77 Conn. 240, and 68 L. R. A. 353; Baker's appeal, 107 Penn. St. 381; Skinner v. American Bible Society, 92 Wis. 209; Schillinger v. Bawek, 135 Iowa, 131; Matthews v. McDade, 72 Ala. 377 ; Estate of Plumel, 151 Cal. 77; Goods of Smart, [1902] Prob. 238 ; Singleton v. Tomlinson, 3 App. Cas. 404. Vestry v. Bostwick, 8 App. Cas. D. C. 452.

In accordance with the terms of the report, a decree is to be entered instructing the petitioners that Mrs. Lynch took no valid power of appointment under the will of her husband, and did not by her will make a valid appointment of any part of his estate, and that her nephews and nieces do not under his and her wills take any interest in his estate, but that the part of his *294estate which would have been at his wife’s disposal if she had survived him must go to his next of kin as intestate estate. Cummings v. Bramhall, 120 Mass. 552,558. Lyman v. Coolidge, 176 Mass. 7. Dresel v. King, 198 Mass. 546.

So ordered.