## Facts

- Philip F. duPont died testate in 1928, leaving one-third of his residuary estate in trust for his daughter, Frances duPont Rust, for life.
- Philip’s will granted Frances a special testamentary power of appointment directing distribution of the trust principal at her death “unto such of her children and issue of deceased children, and in such proportions as she may by her Last Will and Testament ... direct, limit and appoint.”
- Frances died in 1975 and purported to exercise the power by appointing trust property to trustees for the benefit of her surviving daughter, Carroll Morgan Carpenter, for life, with remainder for Carroll’s issue; the trustees were also given discretion to distribute principal to Carroll’s issue.
- In an orphans’ court accounting proceeding, an objection asserted that Frances exceeded the power by appointing to the issue of her living child (Carroll), who were Philip’s great-grandchildren.
- The orphans’ court held the appointment invalid to the extent it benefited Carroll’s issue because the donor-defined class included only Frances’s children living at her death and issue of Frances’s children who had predeceased her.
- Trustees under Frances’s will appealed to the Supreme Court of Pennsylvania, arguing the donor’s language permitted appointment to issue of a living child.

## Issues

1. Whether a donor’s limitation to “children and issue of deceased children” permits a donee to appoint trust property to the issue of a child who is living at the donee’s death.
2. Whether Frances Rust exceeded her special testamentary power of appointment by appointing a portion of the trust for the benefit of her living daughter’s issue.

## Decision

- The Supreme Court of Pennsylvania affirmed.
- The Court held that Philip duPont’s phrase “children and issue of deceased children,” in context and tied to distribution “upon [Frances’s] death,” fixed the permissible appointee class at Frances’s death.
- Because Carroll was living at Frances’s death, Carroll’s issue were not “issue of deceased children” and thus were outside the donor-defined class.
- Frances’s appointment was invalid to the extent it attempted to benefit Carroll’s issue.

## Legal Principles

- The scope of a power of appointment is determined by the donor’s intent as expressed in the instrument creating the power.
- A special (non-general) testamentary power must be exercised strictly within the donor-defined class of permissible appointees; the donee cannot enlarge that class.
- Language limiting appointees to “children and issue of deceased children,” when linked to distribution at the donee’s death, generally excludes issue of children who are alive at that time.

## Conclusion

The court enforced the donor’s limitation on a special testamentary power of appointment, holding that an attempted appointment to the issue of a living child exceeded the power and was invalid to that extent.


Estate of duPont, 379 A.2d 570 (Pa. 1977)