FUTURE INTERESTS--POWERS OF APPOINTMENT--MAY CREDITOR-APPOINTEE OF TESTATOR RECOVER DAMAGES FOR BREACH OF CONTRACT TO APPOINT IN ANY FUTURE WILL

Plaintiff made a contract with the donee of a power of appointment granted in these words: I give and bequeath the principal of said trust fund unto such person or persons and in such estates, interests and proportions as the said Clarence C. Appleton shall in and by his Last Will and Testament in that behalf appoint. I give the said Clarence C. Appleton this power of disposition in order to enable him to make such legacies as he may desire, to his heirs, relatives, friends, or for charity. The donee agreed to execute and did execute a will in which he appointed to the plaintiff trust company a sum equal to the amount of a preexisting debt owed by him to the plaintiff. He further agreed that as often as he might make and execute a new will, he would incorporate therein a like appointment. Subsequently, he revoked that will and executed a new one in which he exercised his power of appointment by giving the whole fund to his son and daughter; he then died insolvent. Plaintiff brings this action for damages for breach of contract. Held, though the deceased\u27s creditors, including the plaintiff, may look to the appointed property for payment of any balance due them after the decedent\u27s own estate is exhausted, the complainant cannot recover upon his contract. United States Trust Co. of Newark v. Montclair Trust Co., (N. J. Eq. 1943) 33 A. (2d) 901