A judge cannot exercise a power of appointment

The testatrix’s will gave to those who cared for her at the end of her life a “fair contribution” of cash assets remaining in her estate as determined by the judge having jurisdiction of the administration of the estate.  The lower court struck the provision for uncertainty.

In In re McSwain, 946 So. 2d 417 (Miss. Ct. App. 2006), the court reversed holding that the provision created a special power of appointment.  However, the court also held that a judge could not exercise the power because it required an “arbitrary” decision and remanded for a finding of whether the testatrix reposed a special confidence in the office of chancellor in the absence of which the power could be delegated to a person able to exercise it.