Krause v. Klucken

135 Mass. 482, 1883 Mass. LEXIS 116

• Court: Massachusetts Supreme Judicial Court
• Decided: September 10, 1883
• Status: Published

Opinion

W. Allen, J.

The bequest in favor of Rosalia Klucken and her children, after the death of John Klesa, is upon the condition that he should not have exercised the power of appointment given to him by the will of his wife, Barbara Klesa. A subsequent provision of the will makes the bequest to be upon the condition that Rosalia shall conduct herself towards him in a certain manner, gives to him the power of appointment in case she should fail to perform the condition, and makes him the sole and exclusive judge of the performance. The construction of both provisions is, that it is not the failure of Rosalia Klucken to perform the condition which forfeits the estate to her and her children, but the judgment of John Klesa that there had been a failure to perform, evidenced by his execution of the power. John Klesa prefaces the appointment which he makes by a reference to the will and to the power of appointment given to him by it, and by a recital that, availing himself of the conditions, and being the sole and exclusive judge, he elects to execute the power. This was clearly an' appointment made by him under the power given to him by the will.

It is argued that the power was executed in fraud of the rights of Rosalia Klucken and her children. The estate was limited to them after the death of John Klesa, upon. condition that he made no appointment of it as provided in the will, and he was authorized to make such appointment if, he judged that Rosalia did not perform a condition expressed in the will. The condition and the power of appointment were both for the benefit of John Klesa. The condition was intended to secure to him the good and tender care and kindly personal attention of a daughter during his life, and the power was a general power of appointment, giving to him the absolute disposition of the property after his death. He consented to the will, and may be supposed to have given his* consent in consideration of its provisions in his favor. The provision that he should be the sole judge of the performance of the condition by Rosalia was for his benefit. After he had judged that the condition had been broken, neither she nor her children had any rights in the estate which an appointment could be in fraud of. The only objection which can be urged by them is that he did not so judge, — that he did not in good faith exercise the discretion given to him to judge of the conduct of Rosalia. We think that the evidence fails to sustain this objection. The will of John Klesa, made in execution of the power, was dated one month after the death of his wife. About a week after her death, he urged Rosalia Klucken to come and live with him, and was angry because she refused, and h,e was many times after that made angry by her refusal of like requests. She was a married woman, and lived, with her husband and two young children, about five miles from him, and visited him about once a week on an average. Whether he lived alone after the death of his wife does not appear. The question is not whether Rosalia Klucken bestowed all the care and attention upon John Klesa that her own family duties permitted. It is not whether it seems to us unreasonable that she should have been required to change her residence that she might devote more time and attention to his comfort and happiness. He was made by the will the judge of that, and we cannot say that he did not exercise his judgment upon it. He may have believed that the power and discretion were given to him by his wife for the very purpose of securing the daily and constant attendance of Rosalia upon him. We cannot find that he did not exercise his judgment, or that he acted in bad faith, if he judged that an occasional visit was not such care and attention as he had a right to require under the large discretion given to him. The will of John Klesa was a sufficient execution of the power under the will of Barbara Klesa, and disposition of the residue of her estate. Decree accordingly.