Counsel for appellants have filed a petition for rehearing. Matters stated in the petition were not overlooked by the Court.
The "last will and testament" of Anna L. Rising, executed April 18, 1925, disposed of all "property of every kind which" the testatrix "may hold at the time of" her "decease, together with all other property, real, personal or mixed of which" the testatrix "may have the power to dispose at the time of" her "decease." The will expressly disposes of all property "of which I may have the power to dispose at the time of my decease." No statute or judicial presumption is needed to make the will applicable to a power of disposition the testatrix hadat the time of her decease, when the will and the subsequently reserved power in the trust deed are consistent in manifesting the intent of the testatrix-settlor with reference to the disposition of her property.
The deed of trust executed April 1, 1926, by Anna L. Rising "called the settlor" did not make an absolute conveyance of the beneficial interest in any of the property and did not revoke the will. It merely assigned the settlor's property to a trustee in trust to "keep the same invested, and to pay over the net income unto the said settlor so long as she shall live," and provided that "upon the death of the settlor, the principal of the trust estate shall be distributed and made over in accordance with the provisions of the last will and testament of the settlor, and in default of appointment by last will and testament, the principal shall be made over to her next of kin," etc. The reference in the trust deed to the power of appointment, is to "the provisions of the last will and testament of the settlor," which means *Page 576 the will that is in force at the death of the settlor, whether such will be executed before or after the execution of the trust deed, where as here the will is expressly made with reference to the date of the death of the testatrix and is consistent with the subsequently executed trust deed. The trust deed does not expressly or by implication require the settlor's power of appointment referred to in the trust deed, to be contained in or to be executed by a will to be made by the settlor subsequent to her deed of trust, and the law does not so require. The trust deed is entirely consistent with the provisions of the will. The settlor-testatrix did not have a mere power of appointment given to her by another. Under the trust deed she retained the beneficial ownership of her property for her life, with a reserved power to dispose of the property covered by her trust deed executed for her benefit during her life, the property to be disposed of at her death, "in accordance with the provisions of the last will and testament of the settlor." This court did not hold that the power of disposition reserved by the settlor in her trust deed could not be executed by a subsequent will, or that it could be executed only by the preexisting will. The provision in the trust deed as to the disposition of the principal of the trust estate "in default of appointment by last will and testament" would be applicable in case the settlor should revoke her existing will and not make another before her death.
The trust deed did not make any particular will of the settlor the irrevocable instrument for executing the power of appointment that was reserved in the settlor's deed of trust. It provided that upon the death of the settlor the principal of the settlor's trust estate shall be distributed "in accordance with the provisions of the last will and testament of the Settlor." The trust deed refers to "the last will and *Page 577 testament of the Settlor." The last will and testament is the latest valid will that is in existence as "the last will and testament" of the testatrix at her death. By the terms of the will if not also under the statute, the will speaks as of the death of the testatrix. In this case the provisions of the will have express reference to the time of the decease of the testatrix; and refer to the disposition of her property including that of which she may have the power to disposeat the time of her decease. The property was hers was a stated power of disposition expressly reserved in her trust deed. The property covered by the trust deed was practically all the property the testatrix-settlor had when she made her will and when she executed her trust deed. Under the trust deed the principal of the trust estate was not to go at the settlor's death to her "next of kin" subject to a power of appointment that may be executed, but the "next of kin" were to take "in default of appointment by last will and testament" of the settlor.
The will and trust deed of the testatrix-settlor were both expressly made operative at her death to dispose of her property and to execute the power of appointment as she directed in her last will and testament and in her trust deed. The settlor-testatrix could have made a will after executing the trust deed and therein made any disposition of the trust property she desired to; but as she did not, her existing "last will and testament," executed prior to the trust deed, is legally sufficient to execute the expressly reserved power of appointment to dispose of her own property by her deed of trust, "in accordance with the provisions of the last will and testament of the settlor."
In McFadden v. Lumpkin, 112 S.C. 431, 100 S.E. 168, the court held that the particular conveyance there considered required the execution of a new will. *Page 578
In Hope v. Hope, 5 Giff. 13, 66 Reprint 902, the court held that the general words of appointment in the will made no reference to the limited and special power as to the property, and failed to evidence an intention to exercise the power.
In Leigh v. Norbury, 13 Ves. Jur. 340, 33 Reprint 321, the court held that the intention was that the deed should operate unless some subsequent act should be done to prevent its operation.
In Title Guarantee Trust Co. v. Ebaugh, et al., 184 N.Y. S. 351, it was held that in the will executed before the trust deed, the testatrix intended by her will to exercise the power of appointment which she may have anticipated.
In United States Trust Co. v. Chauncey, 66 N.Y. S. 563, it was held that where a trust reserves the right of appointment by will to the grantor, an appointment will be effective though made in a will executed a short time prior to the creation of the trust. The trust deed referred to persons appointed by "the last will and testament of the trustor."
An unintended expression appears in one sentence of the opinion. The sentence is corrected to read:
"It seems clear that a power of appointment to be executed by the last will and testament of the settlor, may be executed by a will made before the trust deed is made, if such is the intent of the party who in making the trust deed reserves a power to be executed by 'the last will and testament of the Settlor,' which is effective for the purpose at the death of the settlor."
*Page 579Rehearing denied.
DAVIS, C. J., and WHITFIELD, ELLIS, TERRELL and BUFORD, J. J., concur.
BROWN, J., not participating because of illness.