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Delaware Trust Co. v. Delaware Trust Co.

Court of Chancery of Delaware, New Castle County

March 19, 1953

DELAWARE TRUST CO.
v.
DELAWARE TRUST CO. et al.

Proceedings on a complaint for instructions brought by the executor and trustee under a decedent's will. The Court of Chancery, Seitz, Chancellor, held that the will, considered along with cumulative effect of circumstances known to testatrix at the time she executed the will and at the time she reaffirmed it in her codicil, manifested intent by testatrix to exercise power of appointment reserved by her in inter vivos trust so as to place corpus of inter vivos trust in residuary trust estate.

Order in accordance with opinion.

Page 570

[33 Del.Ch. 444] David F. Anderson (of Berl, Potter & Anderson), Wilmington, for plaintiff.

[33 Del.Ch. 445] W. Reese Hitchens and H. James Conaway, Jr. (of Hering, Morris, James & Hitchens), Wilmington, for defendants Agnes Hubbard, Richard Hubbard, Eva V. Lofland, William Carney, Nell A. Beardsley, Edward Stewart, Linda Elizabeth Stewart, Linda Stewart Eklof and Agnes Hubbard Tisch.

Houston Wilson, Georgetown, for defendant Elizabeth Vaules Carlisle.

Howard Duane, Wilmington, for defendant Lester L. Carlisle, Jr.

Lawrence C. Elliott, Georgetown, for defendant Christian Science Soc. of Milford.

SEITZ, Chancellor.

The principal issue is whether a power of appointment created by an inter vivos trust instrument was exercised in the trustor's will.

This is a complaint for instructions by the executor and trustee under the will of Mary Blanche Carlisle Hirsch. All defendants have appeared by counsel except Carlisle Hubbard, Alice Mitchell Hubbard, Lulu C. Darby, John C. Darby and The First Church of Christ Scientist, Boston, Massachusetts, and a default judgment has been entered against them.

Mary Blanche Carlisle Hirsch (hereafter called the ‘ trustor’ or ‘ testatrix’ ) entered into an inter vivos trust agreement with Delaware Trust Company on December 21, 1940. Under this agreement she deposited with the Delaware Trust Company, as trustee, certain cash and securities having a value of about $125,000. She reserved the right to add to, withdraw from or revoke the trust in whole or in part. The net income was to be paid to her until her death or until she revoked the agreement. It was provided that upon her death:

‘ the trustee shall assign, transfer and deliver the trust fund as then constituted, as directed and appointed by the last Will and Testament of the Trustor or in the absence of such direction and appointment unto the next of kin of the Trustor according to the intestate law of the State of Delaware.’

At the time the trust agreement was executed in December 1940 the trustor was a childless widow well advanced in years. Her next of kin at that date were as follows:

[33 Del.Ch. 446] 1. Carlisle L. Hubbard, Agnes Hubbard and Linda Elizabeth Stewart, the children of her deceased sister, Linda Carlisle Hubbard.

2. Paris T. Carlisle III, her brother; and

3. Lester L. Carlisle, her brother.

There is no evidence as to whether the trustor had a will in 1940. The trustor made a will in 1944 and another will in 1948. Neither of these wills, which were superseded by her last will of 1950, mentions the inter vivos trust or trust property.

The trustor died on June 18, 1951 leaving a will executed August 2, 1950 and a codicil, not here material except that it reaffirmed the will, executed May 22, 1951, and without having terminated the trust during her lifetime. At the time the testatrix executed her will and down to the date of her death, her next of kin under the Delaware intestacy law were:

1. Carlisle L. Hubbard, Agnes Hubbard, and Linda Elizabeth Stewart, ...


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