Matter of Weinstein

Frances Weinstein executed a will stating that upon her death, her residuary estate was to be placed in a trust for the benefit of her husband. The trustee was to pay the husband a monthly amount plus any additional sums the trustee deemed prudent. If Frances’s husband predeceased her, the residuary estate was to be paid to Frances’s cousin Joseph Barnett (defendant), “to be distributed by him, at such time, in such manner and in such amounts, if any, as he alone [should] determine, to and among” his own children, the children of Frances’s brother, Joe Barnett, and the children of Frances’s brother-in law, Irving Weinstein. Frances’s husband predeceased her. Consequently, when she died, her residuary estate passed to Joseph for distribution. Joseph announced his intent to distribute $500 to Irving Weinstein’s son, Arnold Weinstein (plaintiff), and equally divide the remaining $90,000 to $125,000 between his own three children and Joe’s one daughter. Arnold sued Joseph, contesting the disparate treatment. He argued that the will provision created an express trust for the children with Joseph as trustee, rather than giving Joseph a power of appointment. Alternatively, he argued that the power of appointment conferred on Joseph was nonexclusive and Joseph was therefore required to distribute the assets equally among all the identified children. The New York Surrogate Court considered Arnold’s arguments.