McKELVY v. TERRY


370 Mass. 328 (1976)

346 N.E.2d 912

JOHN E. McKELVY, JR. & another, trustees, vs. FREDERICK A. TERRY, JR. & another, executors and trustees.

Supreme Judicial Court of Massachusetts, Norfolk.

May 14, 1976.


Attorney(s) appearing for the Case

Ronald F. Kehoe for John E. McKelvy, Jr., & another, trustees.

Nicholas A. Grace for Frederick A. Terry, Jr., & another, executors and trustees.

Francis S. Moulton, Jr., & William H. Thedinga, as amici curiae, submitted a brief.

Present: REARDON, QUIRICO, KAPLAN, & WILKINS, JJ.


KAPLAN, J.

This is another in a series of cases testing on varying facts whether donees of powers of appointment have meant to exercise their powers or have succeeded in doing so. In the present case, an inter vivos instrument created a special or limited power of appointment that might be exercised by the donee by will referring to the power. A judge of the Probate Court held, in the particular circumstances, that the power was effectively exercised by a residuary...

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