Testatrix, after making certain specific bequests, devised the residue of her estate to her son George for life. The will stated that upon the death of George, the property should pass to his widow and descendants, "provided, however, that [George] may devise his interest to his widow, his descendants or my descendants." The will further provided that if George should die leaving no widow or descendants, and without having made a testamentary disposition, the property was to pass one-half to George's brother and his descendants, and one-half to a sister. George died without having married and left a will which disposed of the entire property to the brother. The sister contended that the testamentary power given George was nonexclusive, so that the attempted exercise which gave the sister nothing was void, and the property should pass to the takers in default. Held, the power was exclusive, reversing the lower court. Overruling a line of previous cases, the court adopted the rule of the Restatement of Property that a power is exclusive unless the contrary is specified by the donor. The court failed to find such contrary intent. Harlan v. Citizens National Bank of Danville, (Ky. 1952) 251 S.W. (2d) 284.
John Houck S.Ed,
FUTURE INTERESTS-POWERS OF APPOINTMENT-EXCLUSIVE AND NONEXCLUSIVE POWERS AND THE DOCTRINE OF ILLUSORY APPOINTMENTS,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol51/iss6/15