dissenting:
If Mrs. Rogers had bequeathed to members of her mother’s family by name, stocks or money amounting to $4,500, and it turned out that in fact she had only $4,000, the court would have found no difficulty in making a pro rata distribution of what she actually had, and the bequests would have been held good pro tanto. But instead of naming the legatees herself, Mrs. Rogers delegated that power to her husband. It was her right to do so. It is conceded that he exercised the power in good faith with intent to execute the donor’s will, but by a slip of memory, or a clerical miscalculation of amounts, he ap*436pointed $4,500 instead of the $4,000 which he' was authorized to do. Why should such an error, which would' not have invalidated the gift by testatrix herself, have that effect on the appointment by the donee of the power, standing' in loco testatoris ? That the donee of a power of appointment is carrying out the donor’s will and not his own, and, therefore, must follow the delegation of authority strictly is not disputed, but where, as here, there is an unquestioned intent to do so and no substantial difficulty in reaching that result, the construction should lean to the support of the exercise rather than to its defeat. It is said that the appointees are mere volunteers and have no claims upon the favor of a court of equity. But it is not a question of favoring volunteers, but of carrying out the lawful, clearly expressed and undoubted will of the testatrix. That is what the court, whether of equity or of law, should endeavor to do, not to be astute to find means of not doing. As already said, the only flaw in the execution of the power is a comparatively small error in the amount, which could be easily cured by a pro rata reduction, as it unquestionably would have been if the error had been made by the testatrix herself. The appointments were made in the manner prescribed, i. e., by' will, and every appointee named was in the class authorized. By this decision a lawful intent of the testatrix clearly expressed is to be defeated by a trivial error in the donee’s execution of the power, although it does not contravene the testatrix’s intent in any way that is not easily susceptible of plain remedy that would be applied Avithout question to the act of testatrix herself. The learned auditor in his first report said, “ the auditor Avas not furnished by counsel with any case that supports his contention,” and it is still to be said after three courts have made the effort that no one nor all of them have yet found and furnished such a case. It is the logic of technicality run mad.
So far I have referred only to the defect in the execution of the poAver with reference to the testatrix’s mother’s family, which was the basis of the decision of the court beloAv. But bad as it is in that aspect it is far worse as applied to the testatrix’s father’s family to which the appellant belongs. If the appointment to the mother’s family is set aside as bad then all the share that was to go to the father’s family is still in*437tact and is well appointed, and the effect is the same as if the donee by refusing or neglecting to make any appointment at all to the mother’s family had left that part of his power unexecuted. Yet because instead of making no appointment on that branch of the power, he did what was equivalent, made one that was not valid, the entirely valid exercise of the other branch of the power must go down with it. The testatrix intended that the bulk of her estate (which by the auditor’s ■report amounted to about $28,000) should go to her father’s family, for she authorized her husband “ to dispose of the same by his will, as follows: Four thousand dollars to my mother’s family, and the balance to my father’s family.” Appellant is one of the father’.s family and the husband appointed,to her the sum of $14,000, and the residue of his wife’s estate after legacies to other members of the family. If the appointment to the mother’s family had been mathematically exact, i. e., $4,000, appellant under the execution of the power would have taken without question $14,000 and a residue of approximately $764. Yet on account of the error of appointing to the mother’s family $500 too much it is held that the fund for the father’s-family is $500 too little and, therefore, is not appointed at all. In plain English, it is held that because the donee of the power gave the appellant $500 less residue than he should have done by exact calculation in the execution of the,power, therefore, she shall get nothing. This is such a manifest travesty of justice and common sense that I cannot be persuaded it is law.
-Justices Fell and Stewart join'in this dissent.