Discombe v. Cuthbert

241 P.2d 781, 73 Ariz. 337, 1952 Ariz. LEXIS 253
CourtArizona Supreme Court
DecidedMarch 17, 1952
DocketNo. 5424
StatusPublished
Cited by1 cases

This text of 241 P.2d 781 (Discombe v. Cuthbert) is published on Counsel Stack Legal Research, covering Arizona Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Discombe v. Cuthbert, 241 P.2d 781, 73 Ariz. 337, 1952 Ariz. LEXIS 253 (Ark. 1952).

Opinion

DE CONCINI, Justice.

This is an appeal by Maria Discombe from an order of the probate court approving a Decree of Distribution in the estate of Eva Rowlands, deceased. The appeal is from the order of distribution of the estate remaining after specific bequests had been distributed.

Eva Rowlands, a widow, died testate in Phoenix, Arizona on February 17, 1949. Her holographic will was dated April 26, 1948 and duly admitted to probate. The will provided for a number of specific -bequests-of personal property, i. e., jewelry, china, silver and household furnishings to certain named persons. Several of testatrix’s husband’s relatives living in Wales were remembered with money bequests. Other than those relatives by marriage, the only person to receive a money bequest in addition to any personal property was Maria Discombe who was the maid of the testatrix. The appraised residue of the estate is $38,000.

The will nominated “Lucy Cuthbert or Mr. Hugh Cuthbert, Sr., of Phoenix” to serve as Executor of the will and directed that no bond be required of such person. Mrs. Hugh (Lucy) Cuthbert, Sr., declined to serve and her husband petitioned for and was qualified as the executor.

The disputed portion of the will reads as follows: “ * * * All things not mentioned in my Will I leave it up to Mr. and Mrs. Hugh Cuthbert, Sr. to distribute to any of my close friends. Please give generously to Maria Discombe who has been a faithful maid. * * * If I have not mentioned anything I ought to have mentioned I leave it to your judgments Mr. and Mrs. Hugh Cuthbert Senior. * * * ”

The petition for decree of final account and distribution filed by Hugh Cuthbert Sr. proposed to distribute such residue to himself and his wife. Maria Discombe filed objection to this proposed distribution. The probate court, by minute entry, denied objector’s petition, and ordered: “* * * that in pursuance of and according to the terms and provisions of the last will and testament of the said Eva Rowlands, deceased, duly admitted to probate as aforesaid, all the rest, residue and remainder of said estate consisting of the following described assets and any and all other property of any kind and character whatsoever belonging to the estate of said deceased, or [340]*340in which said estate may have any interest, be and the same is hereby distributed to Hugh T. Cuthbert, Sr., and Lucy Cuthbert, his wife. * *

Maria Discombe appeals from this portion of the final decree of distribution. Four assignments of error are presented to the effect that,

1. Any conveyance or gift to the Cuthberts was to them in their official capacity as executors or executor.

2. If there was any conveyance to the Cuthberts they took it as trustees for the benefit of Maria Discombe alone or for the testatrix’s close friends.

3. There was a direct bequest of the residue to Maria Discombe and the “close friends”.

4. The residue of the estate was bequeathed to Maria Discombe alone without the burden of a trust.

As to the first assignment of error, the will provided; “ * * * j nominate Lucy Cuthbert or Mr. Hugh Cuthbert of Phoenix, Arizona, as executor of this my last will and testament. * * * ” (Emphasis supplied)

Whereas the clause in question said: “ * * * I leave it up to Mr. and Mrs. Hugh Cuthbert Senior.”

Taking the words of the testatrix literally only one of the Cuthberts was named executor, whereas both were named to distribute the remainder of the estate. It follows then that the Cuthberts together did not take the estate as executors and therefore there is no merit to the first assignment of error. On the other hand the language of the will itself shows the clear intent that one of the Cuthberts was to be named executor. Precatory words directed to an executor indicate a trust while the same words to a devisee do not. Newhall v. McGill, 69 Ariz. 259, 212 P.2d 764.

As to the second assignment the question is, was there a trust ? In this case it appears that there may have been an intention to create a trust. .Newhall v. McGill, supra. If so, the trust fails for two reasons:

1. The beneficiaries “to any of my close friends” are uncertain.

2. The amounts to be distributed are uncertain; they couldn’t be equal amounts because Maria was to get a generous part.

However, we believe the will created in the Cuthberts a special power in the nature of a trust to which the above rule does not apply, as is hereinafter set out.

It is here important to note that Eva Rowlands, as far as is known, left no heirs and therefore the residue of the estate if not governed by the will would escheat to the state. If there is no trust, then the “friends and Maria” will receive nothing, unless there was a direct bequest to them; or unless the clause in question created a [341]*341power of appointment as contended by the Cuthberts.

As to assignments of error Nos. 3 and 4, counsel for Maria Discombe cite no authority as to how this could be sustained as a direct bequest, either to the “close friends” or to Maria Discombe individually, nor do we think that was the' testatrix’s intent. Neither do we think there was a direct bequest to the Cuthberts, as they contend.

The Cuthberts contend that the will provides a beneficial power in them which is tantamount to a “general” power. Under a “general” power the donee may exercise it in his own favor and name himself as sole beneficiary. No special words are needed to create a power of appointment. In re Lidston’s Estate, 32 Wash.2d 408, 202 P.2d 259. In Lyon v. Alexander, 304 Pa. 288, 156 A. 84, 85, 76 A.L.R. 1427, the court named nine classifications of powers and then said: “ * * * For all practical purposes there may be said to be two marked differences in powers of appointment; they can be summarized as general and special powers. The general are those in which the donee of the power may appoint to any one, and the special, in which the donee of the power is restricted to passing on the property to certain specified individuals or to a specific class of individuals. In the latter case, there is a sound reason why the repository of the power should not be permitted to extinguish it, because the testator has indicated the persons 4o whom the property shall go, and there is reposed in the appointee of the power a confidence, something partaking of the nature of a trust; * *

The authorities are not in disagreement as to the distinction between general and special powers. Thompson on Wills, 3d edition, § 393, page 586; 3 Page, Wills, Lifetime Ed., vol. 3, § 1312, page 844; Thompson, Real Property, Powers, vol. 4, § 2275, page 818; 72 C.J.S., Powers, § 6, page 404.

We cannot agree with the Cuthberts that they hold a general power. The will names a “class of persons” and on*? “specific person” in whose favor the power of appointment is to be exercised. We hold therefore that the power of appointment held by the Cuthberts was a special power. 72 C.J.S., Powers, § 6, supra, says: “ * * * a special power may be either discretionary or it may be coupled with a duty. A special power is discretionary where its exercise or nonexercise depends wholly on the volition of the grantee; it is coupled with a trust duty where its exercise is obligatory on the grantee. * * * ” See also Merrill v. Lynch, 173 Misc.

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Related

In Re Rowland's Estate
241 P.2d 781 (Arizona Supreme Court, 1952)

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Bluebook (online)
241 P.2d 781, 73 Ariz. 337, 1952 Ariz. LEXIS 253, Counsel Stack Legal Research, https://law.counselstack.com/opinion/discombe-v-cuthbert-ariz-1952.