This complaint, here on a reservation and report by a single justice of this court, seeks instructions as to the disposition of the remainder of a trust created under the will of Marian Hovey.3 In Massachusetts Inst. of Technology v. Loring, 327 Mass. 553 (1951), this court held that the President and Fellows of Harvard College, the Boston Museum of Fine Arts, and Massachusetts Institute of Technology (the charities) would not be entitled to the remainder of the trust on its termination. The court, however, did not decide, as we now must, what ultimate disposition should be made of the trust principal.
Marian Hovey died in 1898, survived by a brother, Henry S. Hovey, a sister, Fanny H. Morse, and two nephews, John Torrey Morse, Third, and Cabot Jackson Morse. By her will, Marian Hovey left the residue of her estate in trust, the income payable in equal shares to her brother and sister during their lives. Upon her brother’s death in 1900, his share of the income passed to her sister, and, upon her sister’s death in 1922, the income was paid in equal shares to her two nephews. John Torrey Morse, Third, died in 1928, unmarried and without issue. His share of the income then passed to his brother, Cabot *168Jackson Morse, who remained the sole income beneficiary until his death in 1946.
At that point, the death of the last surviving income beneficiary, Marian Hovey’s will provided for the treatment of the trust assets in the following language:
“At the death of the last survivor of my said brother and sister and my two said nephews, or at my death, if none of them be then living, the trustees shall divide the trust fund in their hands into two equal parts, and shall transfer and pay over one of such parts to the use of the wife and issue of each of my said nephews as he may by will have appointed; provided, that if his wife was living at my death he shall appoint to her no larger interest in the property possessed by me than a right to the income during her life, and if she was living at the death of my father, he shall appoint to her no larger interest in the property over which I have a power of disposition under the will of my father than a right to the income during her life; and the same limitations shall apply to the appointment of income as aforesaid. If either of my said nephews shall leave no such appointees then living, the whole of the trust fund shall be paid to the appointees of his said brother as aforesaid. If neither of my said nephews leave such appointees then living the whole trust fund shall be paid over and transferred in in [sic] equal shares to the Boston Museum of Fine Arts, the Massachusetts Institute of Technology, and the President and Fellows of Harvard College for the benefit of the Medical School; provided, that if the said Medical School shall not then admit women to instruction on an equal footing with men, the said President and Fellows shall not receive any part of the trust property, but it shall be divided equally between the Boston Museum of Fine Arts and the Massachusetts Institute of Technology.”4
The will thus gave Cabot Jackson Morse, the surviving nephew, a special power to appoint the trust principal to his *169“wife and issue” with the limitation that only income could be appointed to a widow who was living at Marian Hovey’s death.5 Cabot Jackson Morse was survived by his wife, Anna Braden Morse, who was living at Marian Hovey’s death, and by his only child, Cabot Jackson Morse, Jr., a child of an earlier marriage, who died in 1948, two years after his father. Cabot Jackson Morse left a will which contained the following provisions: “Second: I give to my son, Cabot Jackson Morse, Jr., the sum of one dollar ($ 1.00), as he is otherwise amply provided for. “Third: The power of appointment which I have under the wills of my aunt, Marian Hovey, and my uncle, Henry S. Hovey, both late of Gloucester, Massachusetts, I exercise as follows: I appoint to my wife, Anna Braden Morse, the right to the income during her lifetime of all of the property to which my power of appointment applies under the will of Marian Hovey, and I appoint to my wife the right during her widowhood to the income to which I would be entitled under the will of Henry S. Hovey if I were living. “Fourth: All the rest, residue and remainder of my estate, wherever situated, real or personal, in trust or otherwise, I leave outright and in fee simple to my wife, Anna Braden Morse.”
In Welch v. Morse, 323 Mass. 233 (1948), we held that the appointment of a life interest to Anna Braden Morse was valid, notwithstanding Cabot Jackson Morse’s failure fully to exercise the power by appointing the trust principal. Consequently, the trust income following Cabot Jackson Morse’s death was paid to Anna Braden Morse until her death in 1983, when the principal became distributable. The trustees thereupon brought this complaint for instructions.
The complaint alleges that the trustees “are uncertain as to who is entitled to the remainder of the Marian Hovey Trust now that the trust is distributable and specifically whether the trust principal should be paid in any one of the following man*170ners: (a) to the estate of Cabot Jackson Morse, Jr. as the only permissible appointee of the remainder of the trust living at the death of Cabot Jackson Morse; (b) in equal shares to the estates of Cabot Jackson Morse, Jr. and Anna Braden Morse as the only permissible appointees living at the death of Cabot Jackson Morse; (c) to the estate of Anna Braden Morse as the only actual appointee living at the death of Cabot Jackson Morse; (d) to the intestate takers of Marian Hovey’s estate on the basis that Marian Hovey failed to make a complete disposition of her property by her will; (e) to Massachusetts Institute of Technology, Museum of Fine Arts and the President and Fellows of Harvard College in equal shares as remaindermen of the trust; or (f) some other disposition.” Before us each named potential taker claims to be entitled to trust principal.
In our 1951 opinion, Massachusetts Inst. of Technology v. Loring, 327 Mass. at 555-556, we explained why in the circumstances the charities had no interest in the trust: “The rights of the petitioning charities as remaindermen depend upon the proposition that Cabot J. Morse, Senior, did not leave an ‘appointee’ although he appointed his wife Anna Braden Morse to receive the income during her life. The time when, if at all, the ‘whole trust fund’ was to be paid over and transferred to the petitioning charities is the time of the death of Cabot J. Morse, Senior. At that time the whole trust fund could not be paid over and transferred to the petitioning charities, because Anna Braden Morse still retained the income for her life. We think that the phrase no ‘such appointees then living’ is not the equivalent of an express gift in default of appointment, a phrase used by the testatrix in the preceding paragraph.” In Frye v. Loring, 330 Mass. 389, 393 (1953), the court reiterated that the charities had no interest in the trust fund.
It is apparent that Marian Hovey knew how to refer to a disposition in default of appointment from her use of the terms elsewhere in her will. She did not use those words in describing the potential gift to the charities. A fair reading of the will’s crucial language may rightly be that the charities were not to take the principal unless no class member who could receive principal was then living (i.e., if no possible appointee of prin*171cipal was living at the death of the surviving donee). Regardless of how the words “no such appointees then living” are construed, the express circumstances under which the charities were to take did not occur. The question is what disposition should be made of the principal in the absence of any explicit direction in the will.
Although in its 1951 opinion this court disavowed making a determination of the “ultimate destination of the trust fund,” the opinion cited the Restatement of Property § 367 (2) (1940), and 1 A. Scott, Trusts § 27.1 (1st ed. 1939)6 to the effect that, when a special power of appointment is not exercised and absent specific language indicating an express gift in default of appointment, the property not appointed goes in equal shares to the members of the class to whom the property could have been appointed. For more recent authority, see 5 American Law of Property § 23.63, at 645 (A.J. Casner ed. 1952 & Supp. 1962) (“The fact that the donee has failed to apportion the property within the class should not defeat the donor’s intent to benefit the class”); Restatement (Second) of Property § 24.2 (Tent. Draft No. 7, 1984).7
*172Applying this rule of law, we find no specific language in the will which indicates a gift in default of appointment in the event Cabot Jackson Morse should fail to appoint the principal. The charities argue that the will’s reference to them suggests that in default of appointment Marian Hovey intended them to take. On the other hand, in Welch v. Morse, 323 Mass. at 238, we commented that Marian Hovey’s “will discloses an intent to keep her property in the family.” The interests Marian Hovey gave to her sister and brother were life interests, as were the interests given to her nephews. The share of any nephew who died unmarried and without issue, as did one, was added to the share of the other nephew. Each nephew was limited to exercising his power of appointment only in favor of his issue and his widow.8 We think the apparent intent to keep the assets within the family is sufficiently strong to overcome any claim that Marian Hovey’s will “expressly” or “in specific language” provides for a gift to the charities in default of appointment.9
If we were to depart from the view taken thirty-four years ago in Massachusetts Inst. of Technology v. Loring, 327 Mass. 553 (1951), and now were to conclude that under the terms of Marian Hovey’s will the charities were to receive the trust *173principal, we would face the problem that, under normal principles of res judicata, our earlier decision against the charities is binding on them. Any suggestion that our 1951 decision did not bind the charities because the Attorney General was not a party to that proceeding is not supported by authority. The charities themselves brought the earlier action and chose not to name the Attorney General as a party. That action preceded the enactment of G. L. c. 12, § 8G, inserted by St. 1954, c. 529, § 1, which made the Attorney General a necessary party to the proceedings concerning the application of funds to public charities. Moreover, our 1951 opinion did not concern a compromise settlement between a charity and its adversaries, a situation in which the Attorney General’s involvement would then have been required. See Springfield Safe Deposit & Trust Co. v. Stoop, 326 Mass. 363 (1950). To conclude now that the Attorney General’s involvement was indispensable to a valid determination in the 1951 action would cast a shadow over hundreds of pre-1954 decisions concerning charitable interests under wills and trusts. See Eustace v. Dickey, 240 Mass. 55, 86 (1921).10
The same arguments made by the charities and the Attorney General in this case were considered and rejected in 1951. Surely in a case such as this, at least in the absence of a statute to the contrary, the public interest in protecting the charities’ rights was fully accommodated by the Justices of this court in its prior decision. The Attorney General does not suggest in his answer that, if the named charities could not take, other charities should take in their stead by application of the doctrine of cy-pres.
What we have said disposes of the claim that the trust principal should pass to Marian Hovey’s heirs as intestate property, a result generally disfavored in the interpretation of testamentary *174dispositions. See Fiduciary Trust Co. v. State St. Bank & Trust Co., 360 Mass. 652, 656 (1971); New England Merchants Nat’l Bank v. Frost, 357 Mass. 158, 163 (1970); Loring v. Clapp, 337 Mass. 53, 59 (1958). The claim of the executors of the estate of Anna Braden Morse that her estate should take as the class, or at least as a member of the class, must fail because Marian Hovey’s will specifically limits such a widow’s potential stake to a life interest.
A judgment shall be entered instructing the trustees under the will of Marian Hovey to distribute the trust principal to the executors of the estate of Cabot Jackson Morse, Jr. The allowance of counsel fees, costs, and expenses from the principal of the trust is to be in the discretion of the single justice.
So ordered.
Questions involving the wills of Marian Hovey and her nephew, Cabot Jackson Morse, have been before this court on four prior occasions. See Welch v. Morse, 323 Mass. 233 (1948); Massachusetts Inst. of Technology v. Loring, 327 Mass. 553 (1951); Frye v. Loring, 330 Mass. 389 (1953); Loring v. Morse, 332 Mass. 57 (1954).
The parties have stipulated that at the relevant time the Harvard Medical School admitted women to instruction on an equal footing with men.
We are concerned here only with “property possessed” by the testatrix at her death and not property over which she had “a power of disposition under the will of [her] father.” That property was given outright to his widow under the residuary clause of the will of Cabot Jackson Morse. See Frye v. Loring, 330 Mass. at 396. See also Loring v. Morse, 332 Mass. at 64.
“In Restatement: Property, § 367 (2), it is said, with certain immaterial exceptions, that .‘where there is a special power and no gift in default of appointment in specific language, property not effectively appointed passes to those living objects to whom the donee could have appointed at the time of expiration of the power, unless the donor has manifested an intent that the objects shall receive the property only so far as the donee elects to appoint it to them.’ In Scott, Trusts, § 27.1, the author says, ‘Where there is no express gift over in default of appointment the inference is that the donor intended the members of the class to take even though the donee should fail to exercise the power. The inference is that he did not intend that they should take only if the donee should choose to exercise the power. . . . The cases are numerous in which it has been held that the members of the class are entitled to the property in equal shares where the donee of a power to appoint among them fails to exercise the power. ’ See Farwell, Powers (3d ed. 1916) 528; Kales, Estates Future Interests (1920) § 616.” 327 Mass. at 556.
Section 24.4, concerning the disposition of unappointed property under a nongeneral power of appointment, states: “To the extent the donor of a non-general power has not specified in the instrument creating the power who is to take unappointed property, the unappointed property passes (1) In default of appointment to the objects of the power (including those who are *172substituted objects under an antilapse statute) living at the time of the expiration of the power as though they had been specified in the instrument creating the power to take unappointed property, if — (a) the objects are a defined limited class and (b) the donor has not manifested an intent that the objects shall receive the appointive property only so far as the donee elects to appoint it to them; or (2) To the donor or the donor’s estate, if subsection (1) is not applicable.”
The gift to any widow was to be a life interest if she were living at Marian Hovey’s death.
The nominal distribution made to his son in the donee’s will provides no proper guide to the resolution of the issues in this case. We are concerned here with the intention of Marian Hovey, the donor of the special power of appointment. The intentions of the donee of the power of appointment are irrelevant in construing the donor’s intent. Similarly, those who rely on language in Frye v. Loring, 330 Mass. 389 (1953), as instructive in resolving questions in this case miss the point that Cabot Jackson Morse’s intention with regard to his exercise of the power of appointment is irrelevant in determining his aunt’s intention concerning the consequences of his partial failure to exercise that power.
The court said, in discussing its jurisdiction to decide a case to which the Attorney General was not a party: “It is hardly to be thought that so many cases arising over so long a period of time could have been decided inadvertently. These adjudications without joining the Attorney General as a party are almost conclusive of the jurisdiction of the court even though the point has not been discussed.”