In her last will and testament, Cecil H. Rich, the mother of Frances Rich and appellee Jack Rich, granted a power of appointment over one-fourth of her estate to Frances by providing in Item III B: Frances shall have the power at any time and from time to time, by instrument in writing signed by her and delivered to the Trustees, or at death by her Last Will and Testament, making express reference to this power, to direct the Trustees to turn over any part or all of the property in this Trust to her brothers or sisters or her nieces and nephews, or descendants of deceased nieces and nephews, and in such manner, in Trust or otherwise, as Frances Rich may in such instrument direct or appoint, provided that she shall have no power to appoint such property to herself, to her estate, to her creditors or the creditors of her estate. In her will Frances exercised the power of appointment in favor of her niece, appellant Hargrove, to the exclusion of other nieces and nephews. Frances’s will specifically referred to the power of appointment in Item III B of her mother’s will as follows: It is specifically my intent to exercise that certain power of appointment granted to me pursuant to Item III B 4 of the Last Will and Testament of Cecil H. Rich in favor of Frances Ann Hargrove. Jack Rich filed a declaratory judgment action claiming an interest in the trust property his sister attempted to transfer to Hargrove on the ground that the power of appointment granted by his mother’s will did not permit the exclusive transfer of the entire gift corpus to Hargrove. He also contended that the method by which Frances attempted to exercise the power of appointment was ineffective because she failed to direct the transfer in the manner specified in the power. The trial court entered declaratory judgment in favor of Jack Rich finding that the language in Frances’s will was ineffective to exercise the power of appointment to Hargrove because 1 it did not follow the specific requirements of Cecil H. Rich’s will requiring Frances to direct the trustees to turn over any part or all of the property in this trust, and 2 it improperly excluded all other nieces and nephews contrary to the express intention of Cecil H. Rich. For the reasons that follow, we affirm.
1. The sole question on appeal is whether the quoted language in Frances’s will was a valid and effective exercise of the power of appointment reposed in her by Item III B of Cecil H. Rich’s will. Under Georgia law, a power of appointment can be exercised only in the manner specified by the donor. Metropolitan Life Insurance Co. v. Hall , 191 Ga. 294 4 12 SE2d 53 1940. At the same time, the donee of a power may execute it without expressly referring to it, or taking any notice of it, provided that it is apparent from the whole instrument that it was intended as an execution of the power. The execution of the power, however, must show that it was intended to be such execution; for if it is uncertain whether the act was intended to be an execution of the power, it will not be construed as an execution. The intention to execute a power will sufficiently appear —1 when there is some reference to the power in the instrument of execution; 2 where there is a reference to the property which is the subject matter on which execution of the power is to operate; and 3 where the instrument of execution would have no operation, but would be utterly insensible and absurd, if it was not the execution of a power. Cits. May v. Citizens & Southern Bank of LaGrange , 223 Ga. 614, 615 157 SE2d 279 1967. Applying the above principles, we find that pursuant to the unambiguous language of Cecil H. Rich’s will, Frances was authorized to exercise the power of appointment granted to her either during her life by instrument signed by her and delivered to the trustees or upon her death, by including in her will language making express reference to the power. Accordingly, the language in Frances Rich’s will stating her specific intent to exercise the power of appointment granted to her under Item III B of the will of Cecil H. Rich was sufficient to exercise the power of appointment.
