Chamberlin

The primary question on appeal is whether the decedent Muriel Eddy (Mrs. Eddy) effectively exercised in her will a general discretionary power of appointment given her by the will of her predeceased husband Everett Eddy. The trial court concluded she had and that the appointive property was subject to disposition in her estate. We conclude she did not and that the property is not subject to disposition in her estate.

In 1968 Everett Eddy and Muriel Eddy were husband and wife. Each had been married before. Mr. Eddy had a son by a previous marriage, William E. Eddy. Mrs. Eddy had no children but she did have a sister, Brenda Hemming. During her earlier marriage she also had a stepson, Floyd E. Chamberlin.

On March 18, 1968, Mr. and Mrs. Eddy executed their respective wills, drafted by the same law firm and witnessed by the same persons.

Mr. Eddy’s will purported to dispose of all of his own property, both his separate property and his half of the community property, as well as Mrs. Eddy’s half of the community property. His will provided that if Mrs. Eddy should elect to take under the will, all said property, both *295 separate and community, was to be divided in half…

I respectfully dissent.

In reaching its conclusion that the decedent Muriel Eddy did not effectively exercise in her will the power of appointment given her by the will of her predeceased husband, the majority seems to be relying primarily on the provisions of Civil Code sections 1385.1, 1385.2 and section 1386.2, as amended.

I submit, however, that those statutory provisions are not determinative of the issues raised in this appeal. As will be shown hereinafter, the aforementioned statutory provisions have the effect of merely reinforcing the requirements imposed by Everett’s will (as the donative instrument), rather than adding any additional requirements thereto.

To illustrate this point, we will compare the pertinent provisions in Everett’s will with the applicable statutory provisions.

*304 Everett’s will provided in pertinent part as follows: “If my said wife [Muriel] shall survive me, she shall have the power to appoint, by Will or Codicil thereto, all or any part of the principal and undistributed income of Trust ‘A,’ free from the trust, in favor of her estate, or any persons whom she shall designate. The power shall be deemed to have been exercised only if by…