Surrogate Rita Mella
The sole trustee of the Harkness Trust sought a determination regarding the validity and effect of the exercise of a limited testamentary power of appointment over the remainder of the Trust which benefitted decedent’s daughter, McBride, during her life. McBride exercised the power in her will in favor of her own lifetime trust. Upon McBride’s death, both trusts terminated triggering disposition of their remainders. The McBride Trust made several dispositions before disposing of the remainder to her husband. The husband claimed McBride’s exercise of the power was valid as there were sufficient assets in the McBride Trust apart from the appointive property to pay the pre-remainder bequests, thus no Harkness Trust assets would be distributed to an improper appointee. The court agreed finding no reason to invalidate any portions of the exercise of the power as none of the appointive property would pass to non-permissible appointees. It stated McBride’s husband confirmed the pre-remainder bequests and estate expenses were paid with the substantial assets of the McBride Trust, exclusive of the corpus of the Harkness Trust, which has yet to be distributed pending settlement of this trustee’s accounting suit. The court found the exercise valid and effective.
