## Facts

- Dina W. Block, a New York domiciliary, died in 1981 leaving a will that funded a trust for the benefit of her son, Paul Block, Jr., and Paul’s twin sons, Allan and John.
- Dina’s will gave Paul a **limited testamentary power of appointment** over the trust principal remaining at his death, exercisable “by will” **only “unto and among” Allan and John** in whatever proportions Paul chose.
- Allan and John’s older half-brother, Cyrus (also Paul’s son), was **not** within the class of permissible appointees under Dina’s will.
- If Paul did not effectively exercise the power, the principal would pass under the will’s default plan, dividing into separate trusts for Allan and John.
- Paul later lived and died domiciled in Ohio (1987). He executed a will after Dina’s death.
- Paul’s will **did not mention** Dina’s power of appointment. It contained a broad residuary disposition that poured his residuary estate into a revocable inter vivos trust Paul had created in 1974.
- Under the 1974 trust, after providing for Paul’s wife, the trust property was divided among Paul’s three sons: **35% for Allan, 35% for John, and 30% for Cyrus**.
- During the judicial settlement of trustees’ intermediate accounts under Dina’s will, the trustees sought a determination whether Paul’s will and pour-over trust arrangement **exercised** Dina’s limited power of appointment and, if so, what to do about the trust plan’s inclusion of Cyrus.

## Issues

1. Did Paul effectively exercise Dina’s limited testamentary power of appointment through a residuary pour-over in his will, even though his will did not expressly refer to the power?
2. If the power was exercised, was the exercise invalid because Paul’s overall dispositive plan included an impermissible beneficiary (Cyrus), or could it be given effect only as to the permissible appointees (Allan and John)?

## Decision

- The Surrogate’s Court held that Paul’s will **did exercise** the limited testamentary power of appointment, despite the lack of an express reference, because there was no compelling indication that Paul intended **not** to exercise the power.
- The court declined to treat the exercise as entirely void merely because Paul’s revocable trust also benefited Cyrus, who could not take as an appointee of Dina’s trust.
- The court gave effect to the appointment **only to the extent permitted** by Dina’s limitation—i.e., in favor of Allan and John.
- Based on Paul’s apparent plan to treat Allan and John equally, the court directed that the appointive property be **divided equally** between Allan and John.

## Legal Principles

- Under New York law, a broadly worded residuary disposition in a will (including a pour-over to a revocable trust) can operate as an **exercise of a testamentary power of appointment** even if the will does not specifically mention the power, absent strong evidence of a contrary intent.
- Courts favor a construction that carries out the donee’s intent to dispose of property, so long as the result stays within the donor’s express limits on the class of permissible appointees.
- When an attempted appointment exceeds the donor’s limits by including an impermissible beneficiary, the appointment may be enforced **to the extent** it benefits permissible appointees, rather than being rejected in full.
- In shaping relief within the donor’s restriction, the court may distribute the appointive property in a manner consistent with the donee’s demonstrated plan for the permissible objects.

## Conclusion

In *Will of Block*, the Surrogate’s Court held that Paul Block, Jr.’s residuary pour-over will was an effective exercise of the limited testamentary power of appointment granted by his mother’s will, even though his will did not mention the power. Because Dina authorized appointments only to Allan and John, the court enforced the exercise only for them and directed an equal division of the appointive property between the twins, denying any share of that appointive property to Cyrus.


Will of Block, 598 N.Y.S.2d 668 (1993)