concurring in result only.
I am not in accord with the holding of the majority opinion. It assumes that the power of appointment would have been valid but for the ambiguities in the language purporting to create it. In my opinion, the power of appointment lapsed whether or not the language of the will purporting to create it was sufficient.
The donee of the power of appointment died prior to the death of the donor. “The usual rules which apply to the lapse of legacies given by a will apply with full force to wills executing powers of appointment, so that where an appointment is made by will in favor of one who predeceases the testator the appointment lapses.” *46441 Am. Jur., Powers, § 75, p. 860. See, also, 96 C. J. S., Wills, § 1070c, p. 726; 72 C. J. S., Powers, § 37, p. 434; Restatement, Property, § 348, p. 1936; Brown v. Fidelity Union Trust Co., 126 N. J. Eq. 406, 9 A. 2d 311; Burruss v. Nelson’s Ex’r., 132 Va. 17, 110 S. E. 254; French v. Heywood, 214 Mass. 582, 102 N. E. 271; In re Cardon’s Trust, 352 Pa. 23, 42 A. 2d 56; In re Estate of McCurdy, 197 Cal. 276, 240 P. 498.
Since the power of appointment lapsed, the power itself never came into existence. Applying this rule, the judgment of the trial court was correct in holding that the share of Lucy B. Hopkins vested in Ruth and Dean Niemann.
Newton, J., concurs in the foregoing concurrence.