maintains that the 1932 agreement was void. The Court does not agree.
Plaintiff characterizes the instrument as a contract to appoint and since none of the parties possessed an exercisable power of appointment as of that time, the attempt to appoint was invalid.
The Court does not agree that the instrument was a contract to appoint, but even assuming that it were, the Court would have reservations about considering it a nullity simply on that basis. The policy which underlies the rule invalidating such attempted contracts to appoint is the determination to safeguard the donor's manifested desire to keep the donee's exercise of the power unjelled until his death.
In short, the policy stems from respect of the intention of the testator. What is the intention of the testator in the instant case? If we accept plaintiff's interpretation, the intention is that the ultimate recipient of the power should be determined by fate, totally unrelated to the conservation of judgment which one generally finds to be the intention behind most testamentary powers of appointment. Furthermore, the will of Edwin P. Hanna clearly demonstrates an intention generally to maintain equality with respect to his four children. While courts should not substitute logic for the intention of the testator, in this case, it appears that the power of appointment provision of the will is totally inconsistent with other portions of the will and in no way evinces an intention to conserve judgment in a particular testamentary donee. Although the Court need not decide the issue on this ground, it finds that the policy which underlies the invalidating of contracts to appoint testamentary powers is not applicable in the instant case.
The Court construes the instrument of 1932 as a release. It is clear that all general powers of appointment, whether presently exercisable or testamentary, can be released.
The releasability of general powers of appointment has been upheld even when there was merely the possibility of acquiring such a power.
The Court finds that each of the three signatories to the 1932 agreement released their power of appointment and the Court further finds that the form of the release was, although unartful, proper.
When a power of appointment is releasable, the Court should be liberal as to the form of the release.
A power can be released by a contract between the donee and someone who could be harmed by an appointment, such as a taker in default.
In the instant case, it is clear that the contract was between people who could potentially be adversely affected by the operation of the testamentary power. At the time of the agreement, one child had died.
The three survivors whereupon agreed that the testamentary power which could ultimately reside in one of them should no longer be of force and effect. The Court finds that it is significant that the disposition resulting from the agreement is in accordance with the wishes of the testator in the event the power should not be exercised.
The Court finds that the 1932 agreement is valid as a release of the possible testamentary power which could have ultimately resided in one of the three signatories. The Court further finds that such a construction will not violate the intention of the testator. Finally, the Court finds that under the terms of this agreement the estate of each child is entitled to one-fourth of the assets of the estate of Edwin P. Hanna. Counsel will prepare an appropriate order.
[SEE APPENDIX A IN ORIGINAL]