Samuel Nelson

“ It was a naked authority, to nominate and appoint persons, who were to act for the testatrix in choosing the objects of her bounty, and to make known to them such facts as the two trustees should judge to be proper to guide or influence their judgment in the selection. From the nature of the case it must be a mere naked power, in contradistinction to a power coupled with an interest. A power coupled with an interest, means coupled with an interest in the property which is the subject of the power ”

“ Loring; the great improbability that that lady would make a young servant girl the confidant of her settled intentions respecting her only grandchildren, which she imparted to no one else; the lapse of time; the infirmity and treachery of the human memory, even under favorable circumstances, as to mere casual declarations,-which so many rules of law are framed to guard against, and judicial experience recognizes,-all combine not only to deprive the testimony of this witness of the character of 'the clearest and most stringent evidence,' but to place it below the level of ordinary credibility. ”

“ The attempted answer of the appellants to this course of judicial decisions upon the statute is, that an intention to omit these grandchildren, in order to be legally effective, must be shown to have existed after the death of their father,-because it was only upon the happening of that event in the lifetime of testatrix that they become heirs apparent of the testatrix.
This proposition assumes that it is not possible by even express terms to manifest in a will an intention to exclude persons who may in future contingencies fill the relation of heirs of a testator. ”

“ Doubtless it is true that actual omission is only determined by the state of things t testator's death, but the intention to omit, as to parties alive, may be expressed by a will whensoever made.
The oral evidence of the actual intent of testatrix that these grandchildren should in no event share in her estate, is too strong to be disposed of in the way attempted on the other side. That evidence is unimpeached. ”

“ The studied exclusion of the grandchildren, then living, by limiting the provision made for the father to a life estate, and, at his death, giving it over to charitable uses-and repeating the same limitation in the following year on the execution of the codicil. In view of these circumstances, and this posture of the case, it is insisted that the testatrix must have had called to her mind the children of the son, and also the further fact, that, in the ordinary course of nature, the children, or some of them, would survive the father ”

“ There is, therefore, an entire omission to make any provision for the issue, or, even to notice them in the will, which brings the complainants directly within the enacting clause of this statute, and entitles them to a share of the estate h e same as if the testatrix had died intestate, unless, in the language of the act, 'it shall appear that such omission was intentional, and not occasioned by any accident or mistake.' Whether or not the omission was intentional, or by mistake, may be ascertained from a careful perusal of the terms of the will, or by parol. ”

“ The testatrix executed a will and a codicil before the decease of her son. These were ambulatory, and whether she intentionally omitted the complainants from them is not material, as no case under the statute then existed. And an intention to disinherit either children born after the making of a will, or the issue of a child dying after the making of a will, canno be proved by parol. It can be manifested only by making another will or codicil, from which the person is intentionally ommitted. ”

“ Again (aside from the fact that this is a gift to charity) , if its purpose was to benefit individuals, and if there were no words of survivorship, and the power was joint and personal to Marsh and Guild, it is submitted that it is a power in nature of a trust, and the court would require its execution by the survivor. [11] But here the trustees were seized and possessed of the property, and the power to be exercised was not a naked one, but incident to and coupled with the disposition by them of their title in the trust property. ”

“ A naked power to two persons by name, cannot be executed by one. [3]
The intention of the testatrix to give this property to charitable institutions, was never perfected. She intended to speak only through persons selected and informed by both Marsh and Guild. There being no such persons, there is no expressed will of the testatrix in behalf of the institutions who are respondents. ”