dissenting. — Testatrix, donee of a power, directs (by the eleventh item of her will) that certain pecuniary legacies theretofore given, as well as the taxes thereon, are to be paid out of her “personal estate.” The context shows that the purpose was to exonerate her real estate and not to differentiate between her own property and that of the donor of the power. She continues, “and are not to be charged on my real estate. . . .” When she comes to consider her power of appointment, she refrains from exercising it in favor of any one. She declares in so many words that her will is the exercise of whatever powers of appointment she may have. This would appear to be a perfect blend, if such a thing there be. All claiming under the will have a right to participate in the blended estate. The residuary legatee has no rights whatever until all other legacies, with taxes, etc., are paid, and it is possible because of this blend that debts and costs of administration are charges against the blended estate.
In principle, the instant case cannot be distinguished from our own ruling in Howell’s Estate, 4 D. & C. 526. Here testatrix said: “I declare this will to be an exercise of whatever power of appointment I am authorized to exercise . . .;” there, the donee said, “and I do hereby appoint, will and direct that the property over which I have the said power of appointment shall be disposed of as is in this will directed in conjunction with my own estate.”
In the former cited case, we held that the estate of the donor was taxable as that of the donee. In the instant case, the auditing judge so rules, but the majority opinion finds his ruling erroneous.
What is the proper test of a blend so as to make an appointed estate the donee’s for purpose of taxation? Surely liability for debts and costs of administration expenses are not necessarily the factors. The clear value of an estate is what is left after paying debts and administration. It would seem to follow that if the estate to be taxed is made one — that is, what is left for distribution — then one tax should be imposed; and if the donee has manifested a clear intention to unite the two estates, that intention governs, irrespective of the uses to which the fund is put.
In directing that payment of the award should await settlement by the executor of the will of the donee of the estate in his possession, the auditing judge followed the usual practice. Of course, if the majority opinion correctly enunciates the law, there was no reason for withholding payment. As, however, I cannot concur in the reasoning of the majority opinion nor in its conclusion, I am compelled to note my dissent.