concurring.
In an opinion filed in Valentine’s Estate, I stated what seemed to me to be the difference between Hagen’s Estate, 285 Pa. 326, and the numerous cases which come to the opposite conclusion, of which Com. v. Morris, 287 Pa. 61, is the most recent example. In Hagen’s Estate, the appointed estate was not available to pay debts, because there was no direction to pay debts, and only the testator’s act can make the appointed estate available for that purpose.
The present case is, however, like the Morris case. The preamble recites the power, and there is a direction to pay debts (though the report of the Morris case does not show it), some pecuniary legacies and a residuary clause. The appointed estate, therefore, becomes available for all possible purposes and blending results.
The ninth clause mentions the power again, but only to dispose of the “residue” of testatrix’s own estate and of the appointed estate. This shows that she regarded the other part of the will as exercising the power also, and emphasizes the preamble. The dissenting opinion minimizes the recital in the preamble (though there was nothing more than such a recital in the Morris case) and gives effect only to the mention of the power in the ninth clause, overlooking the fact just noted that this clause deals with the residue of both estates. I would give effect to both references to the power. If this is not done, the appointed estate is not available for pecuniary legacies, though it has been used for that purpose without objection.