dissenting. — I am unable to concur in the opinion filed herein. This is an appeal from an appraisement for inheritance tax purposes. The Commonwealth contends that the donee of a testamentary power of appointment, under a deed of trust, has blended the appointed estate with her own, and has thus made it subject to tax. The Hearing Judge sustained an appeal from an assessment, to which the Commonwealth excepts. Our court is evenly divided on this question.
Testatrix first directed the payment of her debts, and then provided: “All the rest, residue and remainder of my estate, real, personal and mixed, 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, I give, devise and bequeath, &c., . . .” She names her three sisters, and the survivor, beneficiaries, and appoints them executrices. Contemplating the predecease of all three sisters, in the third item of her will, she makes alternative dispositions to various persons and for certain uses. In such alternative dispositions, the amount of her pecuniary legacies exceeds the value of her individual estate.
In an opinion filed in the Estate of Elizabeth C. Winsor, deceased, No. 2484, July Term, 1927 [11 D. & C. 423], we have endeavored to collect and review the leading cases upon the subject of blending. I shall, therefore, not repeat what we have written therein. The test as to blending is whether an intention exists to make the trust estate a part of that of the testator and then to dispose of both estates as an entirety.
In the present case, the dispositive words are found in the residuary clause. It is to be observed, however, that it is by the residuary clause that she disposes of her entire estate. The feature in Hagen’s Estate, 285 Pa. 326, which, in my opinion, distinguishes it from the instant case, is that the third item of the will deals solely and exclusively with the power of appointment and its exercise. Testator expressly declared that he exercised the power in the same manner and as part of his residuary estate. The fourth clause of the will disposes of the residue. As pointed out by Judge Keller (see 85 Pa. Superior Ct. 123, 131, et seq.), the fact that the testator gave no direction for the payment of debts and made no pecuniary legacies, made the use of the words “as part of my residuary estate” significant. It was indicative of an intention that his individual estate should be used for the payment of his debts, “and the balance, if any remaining, should be disposed of in the same way that he disposed of the appointed estate.”
In Dohan’s Estate, 3 D. & C. 182, there was a direction to pay debts, but there were also numerous bequests, and, as in the Hagen Estate, there was an express declaration of intention of exercising the power of appointment “as part of and designating the same as my residuary estate.” The disposition of the residuary estate immediately followed. All the testator was held to have intended was to appoint in the same manner and for the same uses that he disposed of his individual estate.
A potent element indicating intention to blend is that at the time of the execution of the will, as well as at the time of decease, testatrix’s alternative legacies exceeded the value of her individual estate: South’s Estate, 248 Pa. 165.
*438Whether the will works a conversion of real estate into personalty would seem to he of little aid in discovering intent to blend. I do not understand that blending relates solely to personal property. The appointed estate and the individual estate of the donee of the power — both real and personal — is blended where the appointee makes the trust estate (real and personal) a part of his own and disposes of both estates as an entirety.
Upon a consideration of the entire will and of the record, I am unable to agree with the conclusions of the Hearing Judge and the opinion filed in support thereof. I am of opinion that the testatrix intended to blend the appointed estate with her own, generally, and for all purposes. I feel that this case is governed by McCord’s Estate, 276 Pa. 459, and the cases following it (see Winsor’s Estate, supra).
I would sustain the exceptions and affirm the appraisement and assessment.
Lamobelle, P. J., and Thompson, J., join in this dissent.