POWERS -TESTAMENTARY POWER - ENFORCEABILITY OF CONTRACT TO EXERCISE

Charles Wetmore and Morgan Kent, beneficiaries of a trust under the will of their mother which was probated in 1913, entered into an agreement whereby Kent agreed, inter alia, to devise one ninth of the corpus of the estate to Kent\u27s children living at the time of his death in consideration of a promise by Wetmore to exercise a testamentary power of appointment given by the will of the testatrix over one sixth of the corpus in favor of Kent, or if he be deceased at the time Wetmore\u27s will became effective, in favor of such persons as Kent should by will direct. The parties to the agreement also exchanged bonds for the performance of the contract. Kent died in 1939 leaving a will which complied with the agreement made by him and Wetmore. Wetmore died in 1941 exercising the power in favor of his son in violation of the terms of the agreement. Plaintiff, executor of Kent\u27s will, brings this action against the executors of Wetmore\u27s will, demanding that Wetmore\u27s estate be impressed with a trust to the value of the property passing under the power or in the alternative for judgment upon a bond for $ 100,000 given to secure performance of the contract. Held, the contract was invalid as undertaking to bind Wetmore in advance of his death to the exercise of a testamentary power in a certain manner. Nor can the bond be made the basis of a recovery of damages, since it was made pursuant to an unenforceable contract. Kent v. Thornton, 179 Misc. 593, 39 N.Y.S. (2d) 435 (1942)