## Facts

- A trust created by Abraham L. Werner gave his son, Steven L. Werner, a life interest in one-half of the principal and a testamentary power of appointment over that half.
- The trust provided that if Steven did not exercise the power by will, the remainder would pass under a default clause to his then-living children (or, if none, to the settlor’s next of kin).
- During divorce proceedings involving Steven and his second wife, Harriet G. Werner, Steven entered a separation agreement (incorporated by reference into a Mexican consent divorce decree).
- The separation agreement stated Steven would make, and promised not to revoke, a will exercising his testamentary power of appointment in favor of his children, Anna G. Werner and Frank Werner, with income paid to Harriet for their support until age 21 and principal then distributed to the children.
- Steven later executed a will leaving all property, including property over which he had a testamentary power, to his third wife, Edith Fisch Werner, thereby purporting to appoint his trust share to Edith.
- After Steven’s death, the trustees sought a declaratory judgment determining entitlement to Steven’s appointive trust share; Harriet and the children claimed under the separation agreement or, alternatively, under the trust’s default clause if the agreement operated as a release; Edith claimed under Steven’s later will.

## Issues

1. Whether the donee of a non-presently exercisable testamentary power of appointment may validly contract to exercise that power in the future.
2. Whether a contractual promise to exercise a testamentary power of appointment may be treated as a release of the power, triggering the trust’s default remainder provisions.

## Decision

- The court granted summary judgment for Edith Fisch Werner and declared that Steven’s appointive trust share passed to her under his will.
- The court held Steven’s agreement to exercise his testamentary power in favor of his children was void under New York statutory law because the power was not presently exercisable.
- The court rejected the contention that the separation agreement operated as a release of the power, finding it was an agreement to exercise, not to relinquish, the power.
- The Appellate Division, First Department affirmed.

## Legal Principles

- Under New York law, the donee of a power of appointment that is not presently exercisable cannot contract to make an appointment; such an agreement is void.
- A release of a power of appointment requires intent to relinquish the power; a promise to exercise the power in the future is not a release absent language or structure showing that intent.
- When a power of appointment is validly exercised by will, the appointed property passes under the donee’s will rather than under the donor’s default takers.

## Conclusion

The court held that a separation agreement provision requiring a future testamentary appointment was statutorily invalid and did not amount to a release; because the power remained intact and was later exercised by Steven’s will, the appointive trust remainder passed to his third wife rather than to the former spouse or children under the agreement or the trust’s default clause.


Seidel v. Werner, 81 Misc. 2d 220 (Sup. Ct. N.Y. Cnty. 1975), aff'd, 50 A.D.2d 743 (1st Dep't 1975)