Dissenting Opinion
Van Dusen, P. J.,May 14, 1948. — Section 11 of the Wills Act of 1917 does not affect the present question. The power of appointment has been expressly exercised. The question is whether — with respect to the stock in the St. Paul and Marine Company held by the appointed fund — the power has been exercised by paragraph 3 (e) or by paragraph 6. The first men*414tioned paragraph gives “my holdings” of this stock to two persons in half shares; the last mentioned paragraph gives “any balance or residue of the said combined fund or estate” to four other persons. Testatrix herself owned stock of this company; and in my opinion she refers to that stock only in paragraph 3 (e).
It is true that she gives the appointed fund to her own executors, to be added to her own estate “and the combined fund or estate is to be disposed of as follows”. But instead of disposing of the combined fund in a general manner, she disposes of part of it specifically, and the question is what her specification means.
The language of a specific bequest is to be interpreted in the light of the facts as they existed at the time the will was made: Miller’s Estate, 323 Pa. 9; Peterson’s Estate, 242 Pa. 330; McGlathery’s Estate, 311 Pa. 351. In the last mentioned case, the Supreme Court quotes from the opinion of Gest, J., as follows:
“. . . to quote the familiar language of James, L. J., in Boyes v. Cook, 14 Ch. Div. 56, you may place yourself, so to speak, in the testator’s arm chair and consider the circumstances by which he was surrounded when he made his will, to assist you in arriving at his intention.” We are not advised to lie upon testator’s deathbed in interpreting his will.
When so interpreted, of course, the language of the will is to be applied to the facts as they exist at the time of death.
“My holdings” at the time the will was made did not mean anything except that which testatrix then owned. It does not appear whether she knew that the appointed estate then contained Fire and Marine stock. But. she should know that the quantity of stock which would be owned by the fund at the time of her death was uncertain. She had no control over investments. She could not have intended to give whatever the appointed fund might thereafter own, be it more or less.
*415When the language of a specific bequest is applied to testator’s own estate, as it exists at the time of his death, it is applied to something over which he has control. He knows that after-acquired property will be included, and he can either not acquire it, or can change his will. But this testatrix had no such knowledge or power of control with respect to stock in the appointed fund.
These words continued to have the same meaning until her death. It is true that anything else which she acquired, and which was within the meaning of the words would pass by these words. But the meaning did not change.
The cases dealing with a gift of “my estate” and the like are not in point. These are general words, disposing of everything; and the policy of section 11 of the Wills Act is that when a testator gives his own property described in a general manner, the gift takes effect as a disposition of appointed funds likewise. The statute does not say that testator means that. It is a result which the law attaches to his act, whether he means it or not. I repeat that section 11 does not enter into this ease.
I do not think it is material that if the stock in question is dealt with as a specific legacy, the combined fund is now barely sufficient to pay debts, expenses and taxes, leaving very little to pay general legacies of $31,200, including a legacy of $4,000 to one of the legatees of the stock. The question still is what testatrix meant when she wrote her will. We do not know what estate she then had, or what the appointed fund was then worth. Testatrix did not then know what the taxes would be, or indeed what the debts and expenses would be. The combined net value of the two funds might change very much. If the deficit was small we would feel drawn to a different conclusion.
But I respectfully submit that the decision in Ken-worthy’s Estate, 52 Pa. Superior Ct. 152, is not in point. *416Judge Head’s reasoning is unanswerable if the question is one of abatement only. But here the question in the first instance is one of interpretation. What is included within the specific legacy?
I would sustain the exceptions of November 3,1947. If they are to be dismissed, I agree with the disposition by the majority of the question of contribution by general legatees to the tax on specific legacies.
Ladner, J., joins in this dissent.