## Facts

- Mary Jane Ferrell died in 1974 and created a trust granting her husband, Robert W. Ferrell, Sr., a testamentary power of appointment over certain trust assets.
- The instrument authorized Robert Sr. to appoint the trust property “among my descendants in such manner and in such unequal proportions as he shall see fit.”
- The parties agreed the power was a special (limited) power because permissible appointees were confined to Mary’s “descendants.”
- Robert Sr. died in 1995 and, by will, exercised the power of appointment but excluded his daughter Patricia Ferrell-French from receiving any share of the trust assets.
- Patricia sued her siblings and the estate’s personal representative, asserting the appointment was invalid because the phrase “among my descendants” required inclusion of all descendants, including her.
- The defendants argued the special power was exclusive, allowing Robert Sr. to benefit one or more descendants and omit others entirely.
- The trial court held the power was exclusive and upheld the appointment excluding Patricia.

## Issues

1. Whether a special power of appointment to distribute property “among my descendants in such manner and in such unequal proportions as he shall see fit” is presumed exclusive, permitting the donee to exclude a descendant entirely absent an express contrary intent by the donor.

## Decision

- The appellate court affirmed the trial court.
- It held that a special power of appointment is presumed exclusive unless the donor expressly manifests a contrary intent.
- Because Mary’s instrument did not show an intent to require inclusion of every descendant, Robert Sr.’s exclusion of Patricia was valid.

## Legal Principles

- A special (limited) power of appointment is presumed exclusive, meaning the donee may appoint to any one or more objects of the class and exclude others entirely, unless the donor manifests a contrary intent.
- Contrary intent must be shown in the language or structure of the instrument creating the power; absent such expression, courts will not impose a requirement that each class member receive a minimum share.
- Language granting distribution “in such unequal proportions as [the donee] shall see fit” indicates broad discretion and supports exclusivity rather than a mandatory inclusion requirement.

## Conclusion

The court upheld an appointment that omitted a descendant, adopting the rule that special powers of appointment are exclusive by default unless the creating instrument clearly requires non-exclusive treatment of all class members.


Ferrell-French v. Ferrell, 691 So. 2d 500 (Fla. Dist. Ct. App. 4th Dist. 1997)