## Facts

- Vincent and Marjorie O’Hara had eight children.
- Vincent created a revocable trust granting Marjorie a limited power of appointment “to my children,” defining “my children” as his eight named children and no one else.
- After Vincent’s death, Marjorie’s will purported to exercise the power by dividing assets per stirpes and distributing most children’s shares outright.
- Marjorie directed that Judith’s share be held in a new trust for Judith, paying income to Judith and allowing discretionary principal distributions for Judith (and, in administration, for the benefit of Judith and her descendants).
- Marjorie’s plan also provided a remainder interest in the Judith trust for Judith’s children.
- Judith challenged the testamentary trust, arguing it did not comply with the limited power of appointment.
- The trial court held Marjorie exceeded the power by appointing a remainder to Judith’s children, severed that remainder provision, enforced the trust for Judith’s benefit, and ordered any remaining assets at Judith’s death to revert to the Vincent trust.
- Judith appealed from a final summary judgment order; multiple probate and trust construction matters were consolidated.

## Issues

1. Whether a limited power of appointment “to my children” permits the donee to appoint a child’s share in further trust for that child rather than outright.
2. Whether naming the child’s children as remainder beneficiaries exceeds a limited power restricted to the donor’s “children.”
3. Whether an invalid remainder to unauthorized appointees may be severed while enforcing the otherwise valid appointment.
4. If the unauthorized remainder is severed, whether the remaining assets at the child’s death should revert to the donor trust rather than pass to the child’s children.

## Decision

- The appellate court affirmed the final summary judgment.
- It held the limited power allowed Marjorie to appoint assets “to” Judith through a new trust benefiting Judith.
- It agreed Marjorie exceeded the power by creating a remainder interest for Judith’s children, who were outside the class of permissible appointees.
- It approved severance of the invalid remainder provision while leaving the trust effective for Judith’s benefit.
- It upheld the remedy directing any remaining trust assets at Judith’s death to revert to the Vincent trust.

## Legal Principles

- In construing trust instruments and powers of appointment, courts seek to effectuate the donor’s intent as expressed in the instrument.
- A donee of a limited (special) power of appointment must keep all appointed beneficial interests within the class of permissible appointees; appointments to persons outside the class are invalid.
- A power to appoint “to my children” can be exercised by creating a trust for a child’s benefit; an appointment in trust may still be an appointment “to” the child.
- When an appointment partially exceeds the power, a court may sever the invalid portion and enforce the remainder if the remaining dispositive provisions are independently effective and consistent with the governing intent.
- If an unauthorized remainder is struck, directing the remainder back to the donor’s trust is a permissible construction that preserves the limits of the power and avoids benefiting impermissible appointees.

## Conclusion

The court held that a limited power of appointment “to my children” permitted appointment of a child’s share in a new trust for that child, but not a remainder to the child’s children; the invalid remainder was severed, and any remaining assets at the child’s death reverted to the donor trust.


Vetrick v. Keating, 877 So. 2d 54 (Fla. Dist. Ct. App. 4th Dist. 2004)