Richmond daily register. (Richmond, Madison County, Ky.) 1917-1978, 1922-03-15
The Richmond Daily Register Richmond Madison Ky. Wednesday March IS 1922
IRVINE WILL CASE
Continued from page y

eral or specific or even a generI
al reSiduary devise or bequeSt, II
sufficient 10 execute power oi
appointment. where there Is .
clear reference is the will either
To the power itself or 10 the sub
ijcCt matter thereof" vi the
writer's upon the subject. Is well
rs all opinions OF the courts. hold
that it is competent for the lcgis
laturc TO change or alter the com
mon law rule with reference to
! the execution OF powers. and IA
England and some of the state
ii has been changed by statute. in
which case II is only sufficient Ia
follow the method pointed ont by
the statute The statute in Eng
land i section p Of the English
/ Wills Nets and in our state II ],
section 1915. which SAYS ~
devise or bcquc.t shall extend t.
any real or personal estate over
which the tc>tatur has a discrc-
.tionary power OF appointment.
and To- which it would apply II the
estate was his own property and
snail operate aS an execution ol
such power, unless a contrary iu-
tcution shall appear by the viii.
Even under the common law
rule an intention 10 execute the
power need not appear by CN-
press terms or rccitaIs IN the cN-
ccuiing instrument providing
fclinugh appears therein Co ,hu,
tlrit ii was the intention OF H..
dencc to exercise the power b.
exercising that instrument.
Thomas ~. Wright. p ny. l.. r..
PISS. and ca,cs referred tu tlcr
in. other eases from this cuur
adopting and applying the rum
mon law rule supra. a, we'll as IT,
modification, by the section So
The statute referred ,u. are. Her
bert IS. Herbert. - ky. ~ :
iayuc ~. Johnson. - ~. is.
llnkius So. Columbia Trust Co..
lI2 Nv. 200: llcuriot IS. Coo
l55 Nv. AS. and Mccormick IS.
Security Trust Co.. etc. 1874 k!.
Is.
I'm the Herbert case. constituting
the section supra, ui our statute
the opinion said "Thi, provision
"a the statute evidently mean,
that when the power ui appoiu,
mcnt Is given 10 hc exercised p.
a last will. that devise OF the
tc>tator'> ldonCc'>l whole c,'at.
To the person who. IN the tcs,a-
tors discretion, he has the rign
tu designate. the person thus dc
ignatcd will take under thc q
wise. and the same shall br re-
gardcd a> the execution ui Tic
power, although the power given
may not be mentioned cor refer
rcd to- lu The llaukiu, case. ,u.
pra. tie opinion discussed ST.
length the principle, hcrciuhc
fore referred to and rccitc> many
eases from foreign jurisdiction
supporting ;bcm, and conclude
that the power therein involved
was legal and wa, property exc
cutcd by the doucc by will
though IL was made long before
the creation OF the power. it,
language being broad enough 60
include the property, which wa,
the subject matter OF the power.
and there appearing mo- intention
not To execute the power: which
holding Is IN strict conformity
with the provision, OF section
1915 supra ol our statute. II Is
also the rule that a general resi-
duary clause IA a viii H. sufficient
10 cover and pass title to all the
property OF the tcstator whether
real cor personal which Is not 9TH
crwise specifically devised or be-
qucathcd. Durham's Admr.. vs..
CLAY. l42 Nv. %: p \. and J..
Encyclopedia 70l. and Is y. and
T.. Enclu. rs. and in the latter
volume it i, said " general res
iduary bcquest viii operate a. an
execution OF power co appoint
ment by will. unless it appears
that the tcstator did not intend
thereby Co execute the power"
But whether ut common law u
reSiduary clause could be con
strued a a sufficient execution oil
a gencral testamentary power
we need not determine. since we
are convinced that such clause
Is a sufficient execution % such a
power under section 4S45. supra.
of the statutes, unless, as therein
expressed, "a contrary intention
shall appear BY the viii" OF the
lonee. And this brings Us TO the
contentious OF counsel for appel
lees. (al that the statute applies
only To a general power and not
To a limited or special enc. which
L