dissenting. — Believing that a spendthrift trust is not only an estate, but also that it is an estate within the meaning of the will of the donor of the power, I am of opinion that the construction of that will by the Auditing Judge is proper, should be upheld and that all exceptions should be dismissed.
Testator’s widow was given an equitable life interest with special power of appointment of the corpus limited to testator’s two sons, Herbert M. and Richard Forrest, “or their issue.” Upon her was conferred the right of determining the proportions, shares and “estates.”
In appointing outright to Richard one-half of the principal, excepting there-out $100,000, she thus decided what, in her judgment, was to be his absolute share. This done, she, under the authority given her, might well have appointed the $100,000 to the other son. She, however, concluded to and did *465give this same son a life benefit in this $100,000, with spendthrift clause, remainder as he should appoint, and failing to appoint, to his heirs.
Her right to do the latter is before us on exceptions.
The instant case does not conflict with the decisions in Wickersham v. Savage, 58 Pa. 365; Pepper’s Appeal, 120 Pa. 235, and cases following them. They hold that if there is a special power and it is limited to one person, who in the alternative would take outright, the donee may not by appointment reduce the quantum or in any way encumber the appointed estate. If, however, the right of appointment is not limited to one person and a life estate is given to one of a number, the court will not take up or consider the question of the remainder until such life estate terminates.
Such is my deduction from Lewis’s Estate, 29 Dist. R. 796, and, also, 798; 269 Pa. 379.
In one of these cases, Camilla Lewis bequeathed and devised one-fifth of her residuary estate in trust for a daughter, Mary D. Conner, for life, with sole and separate use and with spendthrift clauses. The daughter was given a power of appointment among any of the donor’s lineal descendants “for such estate or estates and in such way, manner and form” as she might direct. In event of failure to exercise the power, the trust estate on donee’s death was to pass under the intestate law as if she died possessed thereof.
In the other, David Lewis, husband of Camilla, created a similar trust for his daughter. The power of appointment given her, however, was limited to descendants of the father “in such shares and amounts” as she should direct. Failing to appoint, the trust estate passed as did that under Camilla’s will.
Mary D. Conner, the daughter, by her will appointed each estate to trustees, in trust, to pay one-half of the income to her son, Edward D. Conner, for life, with right of appointment generally by will, and to his children in default of its exercise.
We upheld the appointment as valid, so far as the equitable life estate was concerned. Appeals were taken in each estate. The Supreme Court confined its opinion to the estate of David; said Mr. Justice Kephart, speaking for the court (at pages 383-84):
“We are not called upon at this time to determine the validity of a supposed future exercise by Edward in contravention to the express terms of the foundation. We might say, as was said in McClellan’s Estate, that the original language was written into each subsequent exercise of the power of appointment. It is not necessary for us to determine that question: nor do we think it necessary to determine the question of delegation of discretion, when, as we view it, Mary made a complete nomination by creating a trust estate, the income therefrom payable to her son for life, with alternate remainders: (a) power to the son to appoint by his last will, or, in default thereof, (6) to his children. The latter conditional appointment was undoubtedly good, amply sustaining the life estate of the son, preventing any merger that might possibly occur had it been absent and the other alternate remainder invalid — this, without the necessity of referring to the grandfather’s will to support the life estate.
“We do not now determine that such remainder to the children should be the ultimate destination of this estate. That question may arise as Edward subsequently acts; it can then be raised in an appropriate proceeding. We here determine the life estate of Edward in the income is sustained by the alternate remainders supported by an active trust, and that the power of appointment as made by Mary was a lawful exercise of her right.
“The decree of the court below is affirmed, costs to be paid by appellant.”
*466In Camilla’s estate, the record was remitted without opinion, this order being entered: “The decree of the court below is affirmed, the costs to be paid by appellant.”
In our adjudication, and also in our opinions, the line of cleavage was distinctly pointed out — thus distinguishing the rulings in Pepper’s Appeal, Wickersham v. Savage, etc. (supra).
I now stress the fact that David, in his will, did not even use the word “estates.”
My view is that, having given something to Richard in fee, and without any restrictions whatsoever, the donee of the power was free to ignore him completely as to the balance, or, in the alternative, to attach such conditions and limitations as she thought proper. Having fixed his share or proportion in an outright appointment, she gave him under the sweeping authorization covered by the word “estate” — in addition, a qualified estate in another portion, by attaching a spendthrift clause and conferring upon him the right of appointment.
If this proposition be unsound, then the right of appointment was “illusory." The sons were to take in any event in default of the exercise by her, each, one-half. If it was the sole purpose of donor to allow his widow to define the proportions, what did he mean when he said “. . . and for such estates as my wife by her last will and testament shall direct and appoint.”
It is true that in the recent case of Hay’s Estate, 7 D. & C. 567, the majority opinion sanctioned a spendthrift trust under a special power allowing the creation of trusts, and possibly because of the use of the word “trusts” in donor’s will, but from Lewis’s Estate, 269 Pa. 379, donee, having a special power, may appoint a trust for life, even though the will of the donor does not use the word “trust” at all; even though the word “estate” is not found in his will.
The majority opinion, in effect, ignores the word estates entirely. It would utterly destroy the discretionary right conferred on the widow. Instead of having a power, she is rendered powerless.
For these reasons I cannot concur.
Thompson, J., concurs in this dissent.