## Facts

- Frances Weinstein executed a will providing that, at her death, her residuary estate would be placed in trust for the benefit of her husband, with direction to pay him a monthly amount and additional sums as the trustee deemed prudent.
- The will further provided that if the husband predeceased Frances, the residuary estate would be paid to Frances’s cousin, Joseph Barnett, “to be distributed by him, at such time, in such manner and in such amounts, if any, as he alone shall determine, to and among” (1) Joseph’s own children, (2) the children of Frances’s brother, Joe Barnett, and (3) the children of Frances’s brother-in-law, Irving Weinstein.
- Frances’s husband predeceased her; when Frances died, the residuary estate therefore passed to Joseph for distribution under the quoted clause.
- The residuary estate was estimated at approximately $90,000 to $125,000.
- Joseph announced an intended plan that included distributing $500 to Arnold Weinstein (Irving Weinstein’s son) and dividing the remainder equally among Joseph’s three children and Joe Barnett’s one daughter.
- Arnold challenged the proposed plan, arguing that the clause created an enforceable express trust for the benefit of the identified children with Joseph as trustee.
- Alternatively, Arnold argued that if the clause conferred a power of appointment, it was nonexclusive and required Joseph to distribute to all class members on an equal (or at least not merely token) basis.

## Issues

1. Did the residuary clause create an enforceable private express trust for the benefit of the identified children, or did it instead confer a power of appointment on Joseph Barnett?
2. If the clause conferred a power of appointment, was the power exclusive (permitting Joseph to favor some objects and give nothing or only a small amount to others) or nonexclusive (requiring meaningful distribution among all objects)?
3. Under the proper construction of the clause, was Joseph’s proposed distribution—providing Arnold only $500 while allocating the remainder largely to others—permissible?

## Decision

- The court rejected the argument that the clause created an express trust for the children and construed the provision as granting Joseph Barnett a discretionary power of appointment over the residuary estate.
- The court construed the power as exclusive, based on the breadth of the language granting Joseph sole discretion as to time, manner, and amounts “if any.”
- Because the power was exclusive, the court held Joseph was not required to make equal distributions among all members of the described class.
- The court upheld Joseph’s authority to make unequal distributions within the permitted class, including a comparatively small or nominal amount to one object, so long as the appointments remained within the class designated by the will.

## Legal Principles

- A court construing a will seeks to effectuate the testator’s intent as expressed by the will’s language read as a whole.
- Language directing that property be “distributed” by a recipient “at such time, in such manner and in such amounts, if any, as he alone shall determine” is strong textual support for a power of appointment rather than an enforceable trust obligation to confer beneficial interests of definite content.
- An express trust generally requires a clear manifestation of intent to impose enforceable fiduciary duties for identifiable beneficiaries; wording that leaves distributions entirely to the recipient’s discretion, including the possibility of “if any,” is inconsistent with a mandatory duty to distribute to each member of a group.
- A power of appointment in favor of a class is exclusive when the instrument’s terms show the donee may select among objects and determine shares without any requirement that each object receive a substantial portion.

## Conclusion

Matter of Weinstein holds that the residuary clause gave Joseph Barnett an exclusive discretionary power of appointment, not an express trust for the named children, and therefore Joseph could lawfully distribute the residue unequally among the permissible appointees, including making only a small gift to one class member while allocating most of the estate to others within the class.


Matter of Weinstein, 444 N.Y.S.2d 427 (1981)