Charles E. Haven, who died in 1890, gave, after the death of his wife, his estate to trustees to pay the net income of one-half thereof to his daughter Rebecca for life, and he conferred on her a general power by will to dispose of the corpus of this half of his estate.
Rebecca is dead, leaving a will which does not direct the payment of her debts, but by the twelfth item she provided as follows: “I declare this will to be an exercise of whatever power of appointment I am authorized to exercise under and by virtue of any instrument or deed, or last will and testament by whomsoever, whensoever and wheresoever made, unless such power has been exercised by me by deed or other valid instrument other than a will or codicil prior to the date of my death.”
By the eleventh item she also directed as follows: “All the rest, residue and remainder of my estate, real and personal, whatsoever and wheresoever situated, I give, devise and bequeath to my sister, Laura Haven Means, absolutely and in fee. . . .”
The auditing judge held that under the rule in McCord’s Estate, 276 Pa. 459, and Forney’s Estate, 280 Pa. 282, the donee had made the appointed estate her own for all purposes, and, hence, imposed the transfer inheritance tax. The auditing judge held the absence of a direction in the will to pay her debts to be immaterial. The exceptions raise this question.
In McCord’s Estate, 276 Pa. 459, 463, Mr. Justice Walling adopted, inter alia, the following language of this court when ruling thereon in banc: “Donees under general powers of testamentary appointment may dispose of the estate, subject to the power, directly to their appointees, or they may reduce it to the possession of their executors and subject it to their debts, expenses of administration and legacies. When the latter course is pursued, it passes as the estate of the donee, of which he was possessed by virtue of the power in his lifetime.”
The theory of McCord’s Estate is plain and simple — -when a donee of a general power disposes of the trust fund in such a way as to make it her own for all purposes, she gives it all the incidents of ownership, and having done so, must accept all the burdens attaching thereto. The benefits and burdens of property are inseparable.
In McCord’s Estate the testatrix had directed the payment of her debts, and in the instant case there is no such direction; the learned auditing judge says that difference is immaterial, in that she declares her will to be the exercise of the power.
We are of opinion that this difference is material, because she has thereby withheld from the fund one of the incidents of ownership; she has not made it her own for all purposes. It does not pass as her estate, but directly from *496these accountants under the will of Charles E. Haven to her legatees. The learned auditing judge states that it is not needed for legacies, and, hence, he should not have deferred distribution until after settlement of the estate of Rebecca E. Haven. Distribution to Laura H. Means is now directed.
Howell’s Estate, 4 D. & C. 526, is to be distinguished from the instant case, in that therein the will of the donee of the power directed that the appointed estate should be disposed of as “In this will directed in conjunction with my own estate. That is, to and for the same purposes as his own estate. Hence, it could be used for debts.
The theory of the instant adjudication is that a direction to pay debts is not a necessary part of a will, and in its absence will be implied. A will does not operate upon an estate till administration expenses and creditors are satisfied, and for that reason a direction to pay debts is not a necessary part of a will. This is not true of an appointed estate. But, it is urged, the residuary clause blends the two estates, and, hence, impliedly subjects the appointed estate to her debts. A similar situation existed in Huddy’s Estate, 236 Pa. 276, wherein the donee of the power left a will which did not direct the payment of debts, gave legacies, contained a residuary clause, but no express exercise of the power. The Act of June 4, 1879, P. L. 88, worked an exercise of the power by implication.
The husband elected to take against the will, and in upholding his right to one-half of the appointed estate under the residuary clause of the will of the donee of the power, Mr. Justice von Moschzisker said: “Since there are sufficient funds in the estate of the donee to pay her pecuniary legacies in full, there is no necessity for applying the Act of 1879 so as to throw them upon the trust fund, and the law will not assume that the donee of the power intended so to exercise it; therefore, those to whom she left pecuniary and specific legacies have no interest in this fund, nor under the facts of this case have the donee’s creditors. It is not necessary to decide what the result would be under other circumstances.”
Furthermore, it should be pointed out that, even if a direction to pay debts had been included in the will of the donee of the power, it is a grave question whether the appointed estate did not pass solely to the residuary legatee.
This would arise from the sequence of the provisions of the will, coupled with the direction in item 10 to pay legacies and inheritance taxes out of “my personal estate.”
Items 2, 3, 4, 6, 7, 8 and'9 give pecuniary legacies; item 10 directs that they should be paid out of her personal estate, as also the taxes thereon; then follows the residuary bequest in item 11. Down to this point we have a complete distribution of her own estate. Then follows, in item 12, the exercise of the power showing the intent of the testatrix to give the entire appointed estate to her residuary legatee. See, also, Dohan’s Estate, 3 D. & C. 182.
We are of opinion that the donee of the power has not made the appointed estate her own for all purposes, and, hence, the fund is not taxable under the rule in McCord’s Estate. This rule should not be stretched to apply to cases whose facts are materially different.
All exceptions in keeping with this opinion are sustained, the others are dismissed, and the adjudication as modified by this opinion is confirmed absolutely.