The court being equally divided in opinion, the exceptions are dismissed.
The reasons which move the members of the court who vote to dismiss are these: This testatrix’s will starts off with a direction to pay debts. A residuary clause immediately follows disposing of “my estate of which I may die seized or possessed or which I may have in expectancy or remainder or over which I may have power of disposition by will, hereby expressly exercising any such power in me vested.”
In Hagen’s Estate, 285 Pa. 326, the mention of the power occurred only in disposing of the residue. There was nothing else in the will except a specific legacy of testator’s old clothes, which would not affect blending. There was not even a direction to pay debts. This omission made the appointed estate not available for debts, and distribution under the power was associated only with part of the distribution of testator’s own estate, namely, that which remained after payment of debts. Mr. Justice Schaffer said: “The testator made no provision in his will as to the payment of his debts, and, while it is not necessary to their payment that he should do so, this circumstance, in connection with the devise of the residue of his estate, has this bearing on the question with which we have to deal: When he spoke of the residue of his estate, he must have known, and necessarily meant, that this was such part of his estate as would remain after the payment of his debts. If he had devised his entire estate, together with the estates over which he had the power of appointment, putting all, as it were, in hotch pot, there then would be strong ground for holding that he had blended’ them, and the rule which *436we have heretofore applied in eases like McCord’s Estate, 276 Pa. 459; Forney’s Estate, 280 Pa. 282; Kates’s Estate, 282 Pa. 417, and Twitchell’s Estate, 284 Pa. 135, would be applicable. As was said by the Superior Court in its opinion (85 Pa. Superior Ct. 123) now up for review: ‘His use of the term (residue) — bearing in mind that the will contained no express direction to pay debts, etc. — is indicative of an intention that the fund over which he had power of appointment should not be subject to or used for the payment of his debts and, therefore, should not be blended with his estate generally, but should be differentiated so that his debts and any pecuniary legacies which he might give should be chargeable to and payable out of his estate, and that the balance, if any remaining, should be disposed of in the same way that he disposed of the appointed estate.’ ”
Our own case of Haven’s Estate, 5 D. & C. 494, is to the same effect. There was no direction to pay debts, and, accordingly, the appointed estate could not be used to pay debts, and there was no blending.
In the present will, testatrix first directed the payment of her debts; all the rest of her estate, including that over which she had power of disposition by will (and this is the only mention of the power), she gave to certain persons. The appointed1 estate is, therefore, not available for debts; and not being available throughout for the same purposes as testatrix’s own estate, is not blended with it. “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:” Hagen’s Estate, supra.
The opinion of the other members of the court distinguishes Hagen’s Estate by saying that the residuary clause in the third item of the Hagen will disposes of the whole estate, and is the only part which deals with the power. But it is only the third item of that will that has anything dispositive in it. All the rest is recital. In the case at bar, the residuary clause of the will in which the mention of the power occurs disposes of the whole of testatrix’s own estate likewise.
On the other hand, are the cases of McCord’s Estate, 276 Pa. 459; Forney’s Estate, 280 Pa. 282; Twitchell’s Estate, 284 Pa. 135; Kates’s Estate, 282 Pa. 417; Howell’s Estate, 4 D. & C. 526, and Com. v. Morris, 287 Pa. 61, in which the appointed estate is available for all the purposes of the will, including debts. In Com. v. Morris, for example, the intention to exercise the power is stated in the preamble. Then follows a direction to pay debts (though the report does not show it), money legacies and a residuary clause, without further mention of the power. Both estates become available for all purposes — debts, legacies and residue — and blending resulted. It should be remembered, also, that McCord’s Estate and Howell’s Estate are special cases. In each there was emphatic language indicating affirmatively that testator wanted both estates to be treated as one; language which paraphrases the words of the Supreme Court, “blending the appointed estates with his own for all purposes.” In McCord’s Estate, for example, the will says: “The entire estate and property shall be administered by my executor hereinafter named for the purpose of carrying out the provisions of my Will.” Dohan’s Estate, 3 D. & C. 182, is another special case upon the other side. The will expressly said that the exercise of the power was confined to the residuary provisions.
We are not prepared to say that an excess of money legacies over the •amount of testator’s own estate is material in determining the question of blending in tax cases. South’s Estate, 248 Pa. 165, does not deal with blending. If there be such a principle, we do not see its application to the present *437case, for the money legacies here are only alternative gifts out of the residue. This would show, at most, that the appointed estate is available for all the residuary provisions, but not for debts. Testator has already said this expressly, and we do not need to resort to inference.