holding that a power of attorney authorizing attorneys-in-fact to commence legal proceeding touching any matter in which the principal might be in any way concerned encompassed act of filing election to take share of estate of principal’s deceased spouse
How later courts described this case
- holding that a power of attorney authorizing attorneys-in-fact to commence legal proceeding touching any matter in which the principal might be in any way concerned encompassed act of filing election to take share of estate of principal’s deceased spouse
- noting that “when an attorney-in-fact performs one of the activities listed in § 5602(a) under authority of general language, section 5603 provides the definitions and limitations that circumscribe his activity.”
- describing the common law as embodying the principle that “general language can serve to grant specific powers”
- daughters as attorneys-in-fact filed a notice of election to take against the will
Written by the judges who cited it.
Later courts went against this
Abrogated by In Re Weidner, 595 Pa. 263 (2007)
531 Pa. 19, 24-25, 27-30, 610 A.2d 958, 961, 963-964 (1992) abrogated as stated in Weidner, supra.
The opinion
NIX, Chief Justice,
dissenting.
Powers of attorney are strictly construed and the grant of special powers is not to be enlarged unless this is clearly intended. Fierst v. Commonwealth Land Title Insurance Company, 499 Pa. 68 , 451 A.2d 674 (1982); Nuzum v. Spriggs, 357 Pa. 531 , 55 A.2d 402 (1947); Schenker v. Indemnity Insurance Company of North America, 340 Pa. 81 , 16 A.2d 304 (1940). It has further been held that the rule of strict construction will not operate to defeat the purpose of the agency. Nuzum v. Spriggs, supra. In this context, the majority interprets 20 Pa.C.S. § 5602(a) as allowing a principal to grant one of the powers listed in section 5602(a) to an attorney-in-fact by use of general language. I disagree.
In pertinent part, section 5602, titled “Form of power of attorney”, provides:
(a) Specification of powers — A principal may, by inclusion of the language quoted in any of the following paragraphs or by inclusion of other language showing a similar intent on the part of the principal, empower his attorney-in-fact to do any or all of the following, each of which is defined in section 5603 (relating to implementation of power of attorney):
* * * * * *
(4) “To claim an elective share of the estate my deceased spouse.”
20 Pa.C.S. § 5602.
The statute requires that a principal use specific language or “other language showing a similar intent” to give the attorney-in-fact the power to perform a certain act. I believe that in order for language to qualify as “showing a similar intent,” *31 a specific reference to the power to be exercised must exist although the exact statutory language is not necessary.
In the instant case, Appellant did not use either the specific language of the statute or other language showing a similar intent. At best, the power of attorney herein was a general power of attorney. The general language used was insufficient to empower the attorneys-in-fact to claim an elective share of the estate of the deceased spouse.
Accordingly, I dissent.