(dissent). I respectfully disagree with the opinion of the majority and would affirm the lower courts.
Those facts set forth in the majority opinion are accepted in so far as they are stated.
The principal issue is whether the residuary clause of Helen M. Hund’s last will and testament is sufficient to exercise her power of appointment in accordance with MCLA 556.114; MSA 26.155(104) which was enacted after the execution of her will and less than three months before her death. That statute provides:
"Unless otherwise provided in the creating instrument, an instrument manifests an intent to exercise the power if * * * the instrument * * * by necessary implication from its wording, interpreted in the light of the circumstances surrounding its drafting and execution, manifests an intent to exercise the power.” (Emphasis added.)
The decedent’s will was dated November 28, 1955. She died on October 30, 1970. The statute in question was made effective as of August 6, 1970.
While a will does not take effect until death, intent of the testator is determined at execution. Morrow v Detroit Trust Co, 330 Mich 635; 48 NW2d 136 (1951). At execution of the will of testatrix, the statute involved in the instant case did not exist. The then-existing statute would have exercised the power of appointment under the residuary clause of the will. That statute provided:
"Land embraced in a power to devise, shall pass by a will, purporting to convey all the real property of the testator, unless the intent that the will shall not operate as an execution of the power, shall appear expressly, or by necessary implication.”
*200This statute was held also to apply equally to personal property. Townsend v Gordon, 308 Mich 438; 14 NW2d 57 (1944).
Oakland County Probate Judge Donald E. Adams and Circuit Judge Arthur E. Moore, both acknowledged experts in probate matters, concluded that the testatrix intended to and did exercise the power of appointment through the residuary clause of her will. Several factors and circumstances combined to effect this conclusion which the Court of Appeals affirmed and which I would affirm.
My colleagues fail in the application of several basic concepts to the facts of this case:
(1) It is a cardinal rule of will construction that the courts should strive to carry out the intent of the testator.1
(2) The will should be read as a whole and all provisions and circumstances existing at the time of the execution should be considered.2
(3) The court should not reverse unless the findings of fact are clearly erroneous3 or the law is applied incorrectly.
I.
Although it is acknowledged that the statute in effect at the time of death controls, it is here necessary to consider the statute in effect at the time of signing the will as one of several "circumstances” bearing upon the intent of the testator.
A competent and experienced lawyer who had worked with the Hunds over the years prepared *201Mrs. Hund’s will after her husband’s death. It may be presumed that the lawyer was cognizant of the applicable laws and applied them to carry out her wishes. There is good reason to believe that both the lawyer and Mrs. Hund knew the consequences of the will at the time of execution. No "contrary intention” was indicated in the will, so the statute existing at the time of execution would have caused the exercise of power.
It is also reasonable to believe that Herbert L. Hund knew exactly what he was doing when he placed two-thirds of his estate in a "Residuary Trust” with income to his wife during her lifetime and then to his heirs. Mr. and Mrs. Hund had no children. He placed the remaining one-third in a "Marital Trust” with income to Mrs. Hund for life. By this trust she was
"given the unrestricted right and authority to direct the disposition of the corpus of said 'Marital Trust’ by the terms of her Last Will and Testament, to her estate or to such person or persons, and in such manner as she alone may elect.”
The net result was that about one-half would go to his relatives and one-half to her relatives or her designated beneficiaries. If Mrs. Hund failed to exercise the power of appointment as described above, an express gift in default would be combined with the corpus of the Residuary Trust to be distributed to Mr. Hund’s heirs.
The will clearly provides for the method of appointment as statutorily provided at that time.
Several other circumstances surrounding the drafting and execution of Helen M. Hund’s will are of importance:
1. Both husband and wife had worked hard and *202prospered together. The probate court found as fact that both were active in the business and that they had sought advice and counsel from a competent law firm which drafted the estate plans and the instrument in question. It was natural that in effect Mr. Hund’s trusts divided the estate into halves and that his Residuary Trust went to his heirs. The plain wording of the Marital Trust left the other half to his wife to dispose of as she would.
2. At the time the will was executed, Mrs. Hund had knowledge of her assets and the subjects of her bounty —primarily her heirs and two of her husband’s relatives who had been kind to her and, so far as we can discern, continued to be close. The natural objects of Mrs. Hund’s bounty were remembered in her will. It is natural that Mrs. Hund would wish to leave most of her estate to her side of the family, but Mr. Hund’s heirs wish all but about one-sixth of the estate accumulated during the years of decedents’ marriage.
To the contrary, the estate plan when formulated, assuming exercise of the power as then provided, would leave husband and wife with approximately equal amounts. Plaintiffs argue that Mrs. Hund’s relatives are in Canada but Mr. Hund’s relatives live in Detroit, so would be more natural recipients of her bounty. This argument is not persuasive. There is no indication that this is a situation new since decedent’s will was executed, yet she willed most of her estate to them in 1955. Also, a relative in Highland Park, Dallas or Miami — or Canada — would be in no degree less a blood relative with natural ties because of distance.
3. The fact that Mrs. Hund died not quite three months after the new statute became effective affirms the importance of the prior statutory provision as a "circumstance” of weight. It is not reasonable to presume conclusively that she knew of the chánged law so that she would hurry out to change her will. Her age, physical disabilities and the short time prior to death lead to the conclusion that she did indeed wish her estate to be apportioned as planned at the time of will execution.
The intent of the testator is clear.
*203II.
Appellant argues that the new statute provides a rule of evidence and that extrinsic evidence of circumstances surrounding the drafting and execution of such instrument may not be introduced unless it explains and clarifies "the wording” of the instrument.
Granted that this argument has merit, its conclusion does not easily follow under these circumstances.
First consider the words of the Marital Trust in light of the current statutory language, "unless otherwise provided in the creating instrument”. Mr. Hund did provide a way to assert the power of appointment.
His plan should be honored.
Next, Mrs. Hund’s will "interpreted in the light of the circumstances surrounding its drafting and execution” clearly sets forth her intent. Read as a whole and in relation to the circumstance of the law when it was written, she has exercised her power of appointment as intended.
The Legislature has been careful not to defeat the intent of testators. I would not defeat that purpose by such a restrictive use of "the wording”. "Wording” is at the heart of this matter and this "wording” under the "circumstances” surrounding the execution of the will is determinative.
III.
This is said to be a close case subject to either conclusion. Although I do not agree, at a minimum we should find the conclusions of the lower courts not clearly erroneous. The intent of the testator should tip the scales.
I would affirm.
Mills v Butler, 364 Mich 422; 110 NW2d 817 (1961), In re Graham Estate 379 Mich 224; 150 NW2d 816 (1967), In re Charlton Estate, 9 Mich App 625; 157 NW2d 821 (1967).
Hudson v Lindsay, 383 Mich 126; 174 NW2d 822 (1970).
GCR 1963, 517.1.