## Facts

- Milton W. Hamilton executed a will in 1966 that placed part of his estate in a trust for his wife, Anita G. Hamilton, and gave her a general power of appointment over the trust remainder.
- The 1966 will conditioned exercise of the power on Anita’s will making a specific reference to that power; if she did not exercise it, the trust remainder would pass to Milton’s daughters.
- Anita executed a will in 1967 stating that she was specifically exercising the power of appointment granted to her in Milton’s 1966 will and directing the appointive property primarily to her son, John H. Ricketson (with a portion to his wife).
- Milton later executed additional wills in 1972 and 1982. Each later will revoked prior wills and again granted Anita a power of appointment over the marital trust, with the same requirement that it be exercised only by specific reference in her will to that power.
- Milton died in 1989, and Anita died shortly thereafter. Milton’s 1982 will and Anita’s 1967 will were admitted to probate.
- In an accounting/declaratory proceeding, the executor sought a determination whether Anita’s 1967 will effectively exercised the general power of appointment created by Milton’s 1982 will.
- The Surrogate’s Court determined that Anita did not exercise the 1982 power because her will referred only to the power in Milton’s 1966 will, and it directed distribution of the trust remainder to Milton’s daughters under the 1982 will’s default provision.
- Ricketson appealed.

## Issues

1. Whether Anita’s 1967 will—expressly referencing and purporting to exercise the power of appointment in Milton’s 1966 will—satisfied Milton’s 1982 will requirement that the power be exercised only by a specific reference to that power in Anita’s will.

## Decision

- The Appellate Division, Third Department affirmed the Surrogate’s Court decree.
- Anita failed to exercise the general power of appointment created by Milton’s 1982 will because her will did not specifically reference the 1982 power.
- Because the power was not effectively exercised, the remainder of the marital trust passed to Milton’s daughters under the 1982 will’s gift in default of appointment.

## Legal Principles

- A donor may condition the exercise of a power of appointment on formal requirements, including a clause requiring the donee to make a specific reference to the power in the donee’s will.
- When the donor states that no instrument is effective to exercise the power unless it contains a specific reference to that power, an instrument lacking that reference does not validly exercise the power.
- A reference to a power granted in an earlier will does not constitute a specific reference to a later-created power, particularly where the earlier will has been revoked and the later will is the operative instrument at the donor’s death.
- If a power of appointment is not validly exercised, distribution is controlled by the donor’s express gift in default of appointment.

## Conclusion

Because Milton’s operative 1982 will required that Anita’s power of appointment be exercised only by a specific reference to that power, Anita’s 1967 will—limited to the power described in Milton’s revoked 1966 will—did not validly exercise the 1982 power, and the marital trust remainder therefore passed to Milton’s daughters under the 1982 will’s default clause.


Estate of Hamilton, 190 A.D.2d 927 (1993)