Nicols v. Estate of Nicols

Sloan, C. J., delivered the opinion of the Court. This appeal is from an order of the Orphans’ Court of Anne Arundel County, overruling exceptions to an executors’ account. Lucy Riely Nicols died May 22, 1939, leaving a will dated October 15, 1936, whereby she, at considerable length and with much detail bequeathed her estate, which amounted to about §10,000 to her children and grandchildren. She said the will- was in the exercise of a power of appointment which she had reserved in a deed of trust dated June 1, 1928, whereby she transferred and delivered to W. Clinton Riely, John L. Nicols and Lambert M. Riely, the sum of §20,000 to pay her the income therefrom, with such parts of the principal as the trustees, or a majority of them, should think necessary for her care, maintenance and support.

The power of appointment stated in the deed of trust, and repeated in the will reads: “Upon the death of the said Lucy Riely Nicols the trust hereby created shall cease and the principal thereof then remaining together with all income thereon accrued, shall be by the Trustees paid over, and delivered free and clear of any further trust unto the person or persons whom by her last will she may appoint.” By the will she appointed Lambert Mason Riely, her brother, executor, and in case he should have predeceased her, or declined to act, appointed John Lloyd Nicols and George W. Haley, as executors, the last named now in the armed forces of his country. On January 29, 1938,. she made a codicil to the will appointing Lambert Mason Riely and John Lloyd Nicols.. On April 28, 1939, she made another codicil, in which she said, “as long as my Brother Courtney Riely lives that my estate shall contribute the monthly allowance of fifteen dollars (§15) towards his support.” This codicil was witnessed by one ⁵⁸⁴ person, but no question has arisen or been decided regarding its validity, Code, 1939, Art. 93, Sec. 336, so that we cannot consider it, nor is it necessary here. Code, 1939, Art. 5, Sec. 10.

W. Clinton Riely had resigned as trustee, under the deed of .trust, and on June 8, 1936, the donor accepted it, and the same day appointed in his stead Lucy N. Hall of Nyack, New York, who, the next day, accepted the trust. What brought this matter to a head was an order of the Orphans’ Court, passed May 24, 19.41, which declared “that the assets mentioned in the deed of trust * * * are.a part of the estate covered by the will; and further, that the power of appointment which the testatrix retained was exercised in her will, subject, however, to the codicil thereto wherein it was provided that this estate should pay to Courtney Riely the sum of Fifteen Dollars per month for and during the term of his natural life,’-* and that the trustees and co-executors were entitled to their expenses of traveling, attorney’s fees and other expenses out of this estate. An account was so stated, and it showed an inventory of personal property of §145, and total credits of §1,018.68, leaving an overpayment of §865.68. There was an accompanying statement of the corpus of the trust fund and accumulations of income amounting to §10,417.79 and distribution in accordance with