Winsor's Estate

Henderson, J.,

dissenting.

-The question in the instant case is one of blending. In Com. v. Morris, 287 Pa. 61, Mr. Justice Schaffer, quoting Hagen’s Estate, 285 Pa. 326, said: “The real test (as to whether there has been a blending) under our line of decisions is whether the testator has *432treated the two estates as one for all purposes and manifested an intent to commingle them generally.”

This case has been treated as one of inferential intent, whereas, in my opinion, it is not necessary to resort to inference when the will furnishes the true guide — an express intent.

The inference has been sought from the fact that she (1) recites her purpose to exercise her power of appointment under her husband's will; (2) directs the payment of debts and funeral expenses; (3) gives pecuniary legacies in excess of her individual estate; (4) directs payment out of her own residuary estate of all taxes on the estate, legacies or devises; and (5) uses a form of residuary clause out of which an inference is sought and which inference I regard as unwarranted under Hagen’s Estate, supra.

The expression in the preamble of an intent to exercise by the will the general power of appointment adds little, if anything, to the statutory intent arising by virtue of the Wills Act of June 7, 1917, § 11, P. L. 403. Without more, the statutory intent has been held insufficient to work a blending. See Huddy’s Estate, 236 Pa. 276. The direction to pay debts and funeral expenses would be implied by law and it has been held that even an express direction to pay debts does not in itself create a blending for all purposes: Terppe’s Estate, 224 Pa. 482. See, also, Fell’s Estate, 14 Dist. R. 327, and Mitchell’s Estate, 7 D. & C. 387.

It has been urged with vigor that the deficiency of her own estate to meet the legacies should be given great force. But why so, when we have an express disposition of the appointed estate tó the residuary legatees? Many testators make the mistake of bequeathing more than they have.

This testatrix has disposed of the appointed estate in the following clause:

“IX. All the rest, residue and remainder of my said estate, real, personal and mixed, whatsoever and wheresoever and whether vested or in trust, subject to my power of disposition, limitation or appointment, I give, devise and bequeath to my dear daughters, the said Emily C. Philler and Louise B. W. Furness, to be divided equally between them.”

In Hagen’s Estate, supra, the clauses disposing of the appointed estate were as follows:

“Third. I declare it to be my intent and purpose to exercise and dispose of as part of my residuary estate in this will in the fullest, largest and most complete manner all powers of disposition and appointment given to, conferred upon, or vested in me, expressly or by implication by any deed, will or other instrument whatever and particularly by the will of my father, Arthur Hagen, dated September 15, 1905, over the one-fourth of his estate devised in trust to invest and pay over the net income therefrom to me during my life and upon my death to pay over the principal thereof to such persons as I by my last will may direct, and over the two-fourths of his estate devised and bequeathed in trust to invest and pay over the net income therefrom to my brother, Arthur Hagen, Jr., during his life and upon his death to pay the principal thereof, less certain deductions, to such persons as I by my last will may direct.

“Fourth. All the rest, residue and remainder' of my estate, real, personal and mixed whatsoever, and wheresoever situate, including my general estate and including also the principal of the one-fourth part of the estate of my father, Arthur Hagen, of which, by the terms of his will dated the 15th day of September, 1905, and probated" at Philadelphia, I enjoy the income and over which I have a power of appointment and including also the principal of the two-fourths part of the estate of my father Arthur Hagen of which by *433the terms of his said will my brother, Arthur Hagen, Jr., enjoys the income, and over which I have also a power of appointment, and including any other powers of disposition or appointment given or conferred1 upon me, I give, devise and bequeath to the trustee hereinafter named, in trust, however, as follows:”

The net income to his wife for life and at her death the estate to be divided into two equal parts, one to be paid over to his children and their issue, and the other in trust for his children for life, and upon their deaths to be divided in equal shares among their children per stirpes, with certain other provisions not necessary here to enumerate, including a number of specific legacies.

In holding that this language did not create a blending, Mr. Justice Schaffer said:

“If, instead of opening the fourth paragraph of his will with the words ‘All the rest, residue and remainder of my estate,’ testator, in the instant case, had opened it with the words disposing of the estate over which he had the power of appointment and had followed them with the words ‘also all the rest, residue and remainder of my estate,’ no question could have arisen that he kept the two estates separate and that there was no blending. We think the reversed order does not indicate a different intention or bring about a different result. . . .

“We are of opinion that it was not the purpose of the testator to blend the appointive estates with his own for all purposes, but what he intended was that the appointive estates should follow the same channels of distribution which he designed for the residue of his estate. The mere fact that the appointed estate is given to the same persons who take the residue of a testator’s individual estate is not the test to be applied in determining whether there has been a blending of the two estates, but the real test under our line of decisions is whether the testator has treated the two estates as one for all purposes and manifested an intent to commingle them generally. It follows from what has been said that the estates over which the testator exercised his power of appointment are not subject to the tax.”

I can find no substantial difference between the instant and Hagen wills, and submit that Hagen’s Estate rules this appeal.

Com. v. Morris, supra, is distinguishable, in that the residuary clause operates upon the appointed estate by virtue of section 11 of the Wills Act, and does not contain, as in the instant case, an express clause disposing of the appointed estate to those who take the residuary estate.

The same persons take the residue and the appointed estate and this fact does not constitute a blending. One of the briefs suggests that this doctrine, so difficult of application, should have engrafted upon it the theory of a pro tanto blending. This would only lead to further refinements.

To sum up, in all these cases of blending where the question is whether the appointed estate is liable for taxation as that of the donee, the sole question is, did the donee of the power make the appointed estate his own for all purposes; did he, in other words, by appointing to his own estate, commingle both estates generally into one common fund to be administered as such together? Hagen’s Estate, 285 Pa. 326. It is not sufficient to show that the appointed estate is made liable for the donee’s debts, or that it was made liable for the donee’s legacies, or that it was given to the same persons who take the donee’s individual estate. In order to tax the appointed estate it must appear, and I think appear clearly, that the donee by his will merged it for all purposes with his own. This was the ratio decidendi of McCord’s Estate, the *434decision of which should not be extended to cases where the same facts do not substantially exist.

See, also, Valentine’s Estate [11 D. & C. 434], recently affirmed by this court, upon the equal division thereof.

I would sustain the exceptions.

Gest J., joins in this dissent.