Estate of Berdrow

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…