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Title: Hogarth-Swann Et Al. v. Weed Et Al.
Author : Supreme Court of Minnesota
Release Date : January 12, 1931
Genre: Law,Books,Professional & Technical,
Pages : * pages
Size : 70 KB

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RUGG, C. J. This case concerns a petition for the allowance of an instrument purporting to be the last will of Irving Harris Niles, late of Cambridge in this Commonwealth, deceased in 1930 unmarried and without issue. By that instrument Disposition was made of all his own property and exercise was made of a power of appointment over other property. That power was conferred upon him by the will of his father, deceased, a resident of this Commonwealth, proved and allowed in 1919, and related to a trust fund established under that will. It was provided by the will of the father that the trustees therein appointed should transfer the corpus of the trust, in default of issue of the son, to such person, persons, or corporations as my said son may by his last will direct and appoint. Events that have come to pass present these circumstances: The only heir at law and next of kin of the son is his aunt, a sister of his deceased mother. For this aunt some provision in made in the instrument now offered for probate as the will of the son and she assents to its allowance, but no provision is made for numerous cousins, issue of two deceased brothers and a deceased sister of his father. These cousins now constitute those who would have been the heirs at law of the father had he died immediately after the death of the son, but are not heirs at law or next of kin of the son. By the terms of the will of the father, if the son failed to exercise the power of appointment, the property which was subject to that power of appointment was given to such person or persons as would have been my heirs at law had I died intestate immediately after the death of my said son, with a proviso not here material. Thus, if the instrument offered for probate as the will of the son is proved and allowed and the exercise of the power of appointment therein exercised be valid, no part of the trust estate of the father will go to the heirs at law of the father; while, if that instrument is disallowed and the exercise of the power of appointment be invalid, that part of the estate of the father will go to those cousins of the son heretofore described. The question for decision is whether, in these conditions, those cousins of the son who would receive the trust estate of the father in default of exercise of the power of appointment by the son are entitled to appear and be heard in opposition to the allowance of the instrument offered for probate as the will of the son.