## Facts

- Harold F. Atwood died in 1945, leaving a will that gave all his property to his wife, Leonora S. Atwood, “so long as she lives,” and expressed a “wish” that she “give, bequeath and devise” the same property at her death to his brother, Alfred L. Atwood.
- Leonora later executed a will stating she intended to appoint only the property she held under Harold’s will to Alfred by exercising a “special testamentary power of appointment” granted to her, and not to dispose of any of her own property.
- Alfred died intestate in August 1965, before Leonora’s death in September 1965.
- Following Leonora’s death, competing claims arose between (a) Harold’s heirs at law and (b) Alfred’s heirs, who argued the appointment should pass through Alfred’s estate.
- The administrator of Harold’s estate sought judicial construction and distribution instructions on an agreed statement of facts.

## Issues

1. Whether Harold’s will created a vested remainder in Alfred, or instead gave Leonora a life estate with a special testamentary power of appointment in favor of Alfred.
2. If Leonora held a special testamentary power of appointment, whether her attempted appointment to Alfred was effective when Alfred predeceased her.
3. Whether Maine’s antilapse statute applies to preserve an appointment under a special testamentary power when the named appointee predeceases the donee.
4. If the appointment failed, whether the property passed to Harold’s heirs at law rather than through Alfred’s estate.

## Decision

- The court construed Harold’s will as granting Leonora a life estate coupled with a special testamentary power of appointment limited to appointing the property to Alfred.
- Because Alfred predeceased Leonora, the attempted testamentary appointment to Alfred failed (lapsed).
- Maine’s antilapse statute did not apply to an appointment made under a special testamentary power over another person’s estate.
- The property therefore reverted to Harold’s estate and was distributable to Harold’s heirs at law.

## Legal Principles

- Language granting a spouse a life estate and stating it is the testator’s “wish” that the spouse “give, bequeath and devise” the property to a named person may be construed as creating a special testamentary power of appointment, not a direct remainder.
- A testamentary appointment is effective only at the donee’s death; the named appointee must survive the donee to take.
- Antilapse statutes directed to devises and legacies made by a testator generally do not extend to dispositions made by a donee exercising a special testamentary power over property originating from another testator.
- When a special testamentary power of appointment fails and no effective alternative disposition exists, the appointive property returns to the donor’s estate for distribution under the donor’s will or intestacy.

## Conclusion

The court treated the widow’s interest as a life estate with a special testamentary power to appoint the property to the testator’s brother; because the brother died before the widow, the appointment lapsed, the antilapse statute did not save it, and the property passed through the testator’s estate to his heirs at law.


Dow v. Atwood, 260 A.2d 437 (Me. 1969)