Estate of Berdrow

Opinion

THAXTER, J.

We hold here that a will clause exercising a testamentary special power of appointment by apportioning shares between two appointees, with the apportionment of one appointee’s share contingent on his survival of the decedent, is a complete exercise of the power even if that appointee does not survive. Thus, the entire appointive property passes to the other named appointee and none is distributable to the deceased appointee’s issue.

Factual and Procedural Background

Earl Lester Berdrow (Earl) died testate on September 14, 1964. His surviving widow Martha Berdrow (Martha) was granted a life estate and testamentary special power of appointment over the remainder of the trust property. The power of appointment was “special” because it could only be exercised in favor of the named appointees: Martha’s son, Stanton K. Berdrow (Stanton); persons who are the issue of both Stanton and Rosa Berdrow; Martha’s grandson, Stephen Berdrow Koenig (Stephen); and Stephen’s issue. The decree of final distribution in Earl’s probate proceedings filed in Kern County Superior Court on January 6, 1967, provides that if Martha failed to exercise the special power of appointment, the trust

[641]

property is to be distributed equally to Stanton and Stephen or any of their issue if either is no longer living.

Martha died testate on March 7, 1991. Martha’s will dated November 1, 1985, and codicil dated April 24, 1986, were admitted to probate in Orange County Superior Court on April 18, 1991. Martha’s will provides in part as follows:

“Article Fourth [f] I declare that I have a special power to appoint the trust estate of a trust established by the Will of my deceased husband; Earl Lester Berdrow, to or for the benefit of any or all of the following persons: Stanton K. Berdrow, the issue of both Stanton K. Berdrow and Rosa Berdrow, Stephen Paul Berdrow Koenig, and the issue of Stephen Paul Berdrow Koenig. It is my intent to exercise that power and the property subject to that power shall be apportioned into equal shares as follows: One (1) such share for Stephen Paul Berdow Koenig, if he survives me, and three (3) such shares for my son, Stanton K. berdrow, if he or any of the issue of Stanton K. Berdrow and Rosa Berdrow survives me. I give each share so apportioned for a named person who survives me to such person. If my son, Stanton K. Berdrow, fails to survive me, the shares so apportioned for him shall be further apportioned into equal shares as follows: One (1) such share for my granddaughter, Nancy Berdrow, if she or any of her issue survives me, one (1) share for my grandson, John Stanton Berdrow, if he or any of his issue survives me, and one (1) such share for my grandson, Matthew Scott Berdrow, if he or any of his issue survives me. I give each share so apportioned for a named grandchild of mine who survives me to such grandchild, and I give each share so apportioned for a named grandchild of mine who fails to survive me but who has issue who survive me to such issue.”