Limitation to the Exercise of Power by Donor
Cases have used the term "exercise of the power" interchangeably with "execution of the power".
An example of the interchangeable use may be found in In re Estate of Burgess, 836 P.2d 1386, 1391 (Utah App. 1992).
Thus, the next question asks what effect, if any, does Section 299.4 have on the common law rule.
The generally accepted common law rule is that a donor of a power of appointment may place limitations on the exercise of the power, such as were contained in Allen, Sr.'s Trust, and, when that occurs, the donee must comply with the limitations.
See: Clinton County Nat'l Bank & Trust Co. v. First Nat'l Bank of Cincinnati, 62 Ohio St. 2d 90, 403 N.E.2d 968 (Ohio 1980);
First Nat'l Bank of McMinn County v. Walker, 607 S.W.2d 469 (Tenn. 1980);
Holzbach v. United Virginia Bank, 216 Va. 482, 219 S.E.2d 868 (Va. 1975);
In re Estate of Smith, 41 Colo. App. 366, 585 P.2d 319 (Colo. App. 1978);
Lewis v. Tennille Banking Co., 230 Ga. 529, 198 S.E.2d 172 (Ga. 1973);
Schwartz v. Baybank Merrimack Valley, N.A., 17 Mass. App. Ct. 169, 456 N.E.2d 1141 (Mass. App. 1983);
and see cases collected 16 A.L.R.3rd 951, 959-60;
see First Union Nat'l Bank v. Ingold, 136 N.C. App. 262, 523 S.E.2d 725 (N.C. App. 1999) (the court stated that it followed the minority rule whereby a residuary clause not mentioning a power of appointment exercised a general, unrestricted power of appointment.)
One reason for the rule is that the estate that is being appointed belongs to the donor (in the absence of a power coupled with an interest) and so the donor may impose conditions on the exercise of the power. Schwartz v. Baybank Merrimack Valley, N.A., 17 Mass. App. Ct. 169, 456 N.E.2d 1141, 1144 (Mass. App. Ct. 1983); In re Estate of Schede, 426 Pa. 93, 231 A.2d 135, 137 (Pa. 1967); In re Estate of Burgess, 836 P.2d 1386, 1391 (Utah App. 1992).
Other reasons for upholding the specific instructions of the donor are to avoid unintended estate tax consequences; to avoid giving the property to the wrong persons; and, to insure the integrity of title. Cross v. Cross, 559 S.W.2d 196, 212 (Mo. Ct. App. 1977), (WASSERSTROM, J. dissenting).
Therefore, if "execution of the power,"as used in the second sentence of Section 299.4, can be interchanged with "exercise of the power" and the phrase also means that instructions as well as procedural formalities may be disregarded, then Section 299.4 is in derogation of the common law.
In such case the statute is to be liberally construed with a view to effect its object and to promote justice. 25 O.S. 1991, 29.
However, statutory alterations of the common law must be clearly and plainly expressed and an intent to effect a change will not be inferred from ambiguous or inclusive text. Jones v. Oklahoma Natural Gas Co., 1994 OK 89, P17, 894 P.2d 415, 419-20.