dissenting:
I believe the court should defer to the decision of the executor.
Two facts that bear on the question of whether to allow the disclaimer need amplification: the tax consequences and the assets of the Morgan Trust. The estimated tax saving if the disclaimer is accepted is *28,000, approximately 17% of the Thatcher estate. The Morgan Trust, established in 1955, presently holds *154,000, the proceeds of an insurance policy which insured the life of the decedent. The Morgan Trust will receive approximately *85,000 from the Morgan estate even if the disclaimer is accepted. It also holds life insurance policies on John Alden Morgan in the sum of *250,000. Thus, the potential value of the entire Morgan Trust, without any reference to the *160,000 from the Thatcher estate, is approximately *489,000.
If the disclaimer is accepted, *28,000 in taxes will be saved and the trustee’s fees will be avoided. The proceeds of the Thatcher estate will go directly to the daughters of Mrs. Morgan. This effectuates the express intention of Mrs. Thatcher as articulated in her will.
As the majority opinion in this case points out, the three children of Diana Senior, and any children Diana Senior and Pamela Johnson may have, may be deprived of the proceeds of the Thatcher estate. However, the Morgan Trust is still substantial. No particular child can be said to be deprived of any inheritance because Diana Senior and Pamela Johnson were given a power of appointment which could be exercised in favor of any one of the descendants of Mrs. Morgan. The 25% limitation on distribution of principal applies only to the distribution of principal other than for reasonable support. Therefore, because the entire principal as well as the income may be used for the support of Diana Senior and Pamela Johnson, there is no certainty that there will be any funds for any of their children.
Both the trial court and the majority of this court reason that the discretion of the court is to be guided by the testamentary intent of Mrs. Morgan. The only evidence of that intent in the record is from the language of the trust established by Mrs. Morgan in 1955. The majority states that the result of the disclaimer would be against the “expressed intent” of Mrs. Morgan. Apparently this “expressed intent” derives from the majority’s inference of fact that “Mrs. Morgan did not choose to make outright bequests to her daughters.” The underpinning for the “expressed intent” is slight.
In determining the intention of Mrs. Morgan, the judgment of John Alden Morgan must be weighed. He was named as the successor executor under the will of Mrs. Thatcher. He was named the executor by Mrs. Morgan and was given broad powers including the right to make all decisions concerning taxes. He is the father of both Pamela Johnson and Diana Senior and the grandfather of the potential beneficiaries of the Morgan Trusts. As executor he had the duty to consider the surrounding financial circumstances, including tax consequences, and what he perceived would have been the intent of his wife in making his decision to disclaim. The direct distribution to Pamela Johnson and Diana Senior militates against the necessity of the trustee invading the principal of the trust for their support and best interests.
If Mrs. Morgan had lived she had a right to disclaim. This right was given to her executor by statute. Because of the position of confidence that the executor held with his wife and with his mother-in-law, Mrs. Thatcher, I believe that his decision in exercising the right to disclaim was reasonable and should have been acceded to.