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Loring v. Marshall

Citation. Loring v. Marshall, 396 Mass. 166, 484 N.E.2d 1315, 1985)
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Brief Fact Summary.

Marian Hovey created a testamentary trust that granted powers of appointment to her nephews. The nephews were only allowed to appoint property to their wives under limited circumstances. The remaindermen of Hovey’s trust and her heirs at law sought the principal of the trust because her nephew never exercised his power of appointment over the principal.

Synopsis of Rule of Law.

When a special power of appointment is not exercised absent specific language indicting an express gift in default of appointment, the property goes in equal shares to the members of the class to whom the property could have been appointed.


Marian Hovey created a testamentary trust granting powers of appointment over the trust income to his nephews to exercise in favor of their wives under limited circumstances. If her nephews failed to make such an appointment, the trust property was to be transferred to the Boston Museum of Fine Arts and other charities. Hovey’s nephew, Cabot Jackson Morse, left the remainder of his estate to Anna Braden Morse. Morse never exercised his right in regards to the trust principal of the trust created by Hovey. When she passed, the trustees were uncertain how to distribute the principal of the trust.


Whether a gift may go to remaindermen of a trust where a donee fails to exercise his power of appointment.


No. If a donee fails to exercise his power of appointment, a gift must go to any potential appointees, not the remaindermen of the trust. The testator did not intend that the property go to the charities but only to the descendants of her nephew who was a donee under her will. The testator left her property to her sister and brother, and her nephews. She did not include any other persons. The property must be transferred to one of her stated nephews and not to the heirs at law. By the other terms used in her will, the testator knew how to refer to a disposition in default of appointment.


The terms of the will showed that the testator intended to leave property to her nephews. None of the terms showed that she intended to include any of her heirs of law who were not related to her nephews.

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