with whom SCOL-NIK, Justice, joins, dissenting.
I must respectfully dissent. I agree that the will provision creates a power of appointment, but I do not agree that the power survives the death of one of the joint donees. It is my judgment that the Court has exceeded the proper bounds of interpretation and has, in effect, actually added a clause to Miss Worthley’s will. Although there is little authority directly on point, that fact does not justify the abandonment of any principled basis for the decision. We have previously defined a general power of appointment as a power given to a donee to appoint anyone, including himself, as the beneficial owner of the property. Moore v. Emery, 137 Me. 259, 274, 18 A.2d 781, 788 (1941). Unlike the office of an executor or a trustee, a power of appointment, conferred upon a person by name, is personal and can be exercised only by the donee. Bratton v. Trust Co. of Georgia, 191 Ga. 49, 11 S.E.2d 204, 207 (1940). If the donee predeceases the testator, the power to appoint does not pass to anyone, there is no office for the probate court to fill, and the devise fails. The opinion of the Court ignores the analogy to a sole donee and silently rejects the principles derived from such cases. Essentially the Court concludes that the absence of any explicit reference to the residuary clause in a failed devise justifies the Court in rewriting the will in order to avoid the residuary clause. The Court commences its creative exegesis under a forceful incantation of testamentary intent and concludes with the weak assertion that no authority has been found “that directly contradicts the overriding proposition that the answer must lie in the intent of the testator.” Strangely enough, the Court seems to view the residuary clause as alien to the intent of the testator.
Although only one court has decided whether a power of appointment survives the death of one of two or more jointly named donees, that court logically concluded from analogous cases involving a single donee that, “unless otherwise provided, where a power is conferred on two or more persons, and it is dependent on their judgment whether or not it shall be exercised, the power is a special confidence in their combined judgments, and the concurrence of both or all is necessary to a valid exercise of the power.” James v. United States, 448 F.Supp. 177, 178 (D.Neb.1978). I would rule that the power does not survive the death of one of the donees, unless the grantor expressly provides therefor or the power is coupled with an interest. Wilson v. Snow, 228 U.S. 217, 223, 33 S.Ct. 487, 490, 57 L.Ed. 807 (1913); Peter v. Beverly, 35 U.S. (10 Pet.) 532, 564, 9 L.Ed. 522 (1836). Because the Robies possess no interest in the property beyond the power to appoint themselves, the power is not coupled with an interest. “It is the posses*438sion of the legal estate, or a right m the subject over which the power is to be exercised, that makes the interest.” Peter, 35 U.S. at 564. No interest is created simply because the donees may derive a personal benefit from the exercise of the power. Id.
The language of Miss Worthley’s will does not provide that the' power will survive the death of one of the donees. In my judgment, the power is therefore no longer valid and the property referred to in the Fifth provision of the will should properly become a part of the residuary estate. I would vacate the order of the Probate Court.