218 Pa. 431 | Pa. | 1907
Lead Opinion
Orinion by
The very elaborate discussion of the questions raised on this record by the orphans’ court and Superior Court so fully vin
The donee of a power is simply a trustee for the donor to carry into effect the authority conferred by the power. In exercising the power, he must observe strictly its provisions and limitations. The estate appointed is that of the donor and not of the donee, and in making the appointment the intention of the donor and not that of the donee must prevail. In case of a restricted power, the donee’s discretion in exercising the power is defined by the will, and the limit there placed upon it must be observed.
Recurring to the case in hand, it is apparent that Rogers exceeded the power given him in the will of his wife. The authority conferred upon him by Mrs. Rogers’s will to dispose of the residue of her property is as follows: “ Four thousand dollars to my mother’s family and the balance to my father’s family in such manner as he may think proper.” The power thus given the donee is clearly expressed and confers authority upon him to appoint $4,000 to the mother’s family and “ the balance” to the father’s family. Such was the distribution which Mrs. Rogers authorized her husband to make of the residue of her estate. In violation of the power given him and in an attempt to dispose of the estate as if it were his own, he gave the mother’s family $4,500, thereby defeating the intention of the donor not only by giving the mother’s family more of the donor’s estate than she had authorized to be given it, but also depriving the father’s family of part of the estate which the donee was clearly directed to appoint to it. It is manifest, therefore, that the appointment was a direct violation of the power and hence cannot be sustained.
But will equity come to the relief of the appointees and cure the defective appointment? It cannot do so under the circumstances of this case unless at the instance of a mere volunteer it executes the power of appointment instead of the
While the sum given the appellant by the donee was the residue of the estate, it was limited in amount. The estate consisted of a certain fund, the amount of which is shown by the account of the executors of Evans Rogers. Four thousand dollars were directed to be given the mother’s family. “ The balance” which was to be appointed to the father’s family was necessarily a certain and fixed sum. Whether, therefore, the amount appointed to the appellant is called the residue, or the exact sum was named by the donee, is wholly immaterial, as in either instance she was given a fixed sum under the donee’s appointment which was not intended to and did not include the $500 distributed among the mother’s family. The amount appointed to the father’s family is just $500 less than the sum directed by the donor to be distributed among the different members of the family, and, if equity has authority to correct the appointment, there is no standard established by the appointment for ascertaining the intention of the donee as to which of the distributees or in what proportion among them the excess should be appointed. There is clearly no more authority for the court to aid the appointment by directing the payment of the $500 or any portion of it to the appellant than to all or any of the other members of the father’s family.
The judgment of the Superior Court is affirmed.
Dissenting Opinion
dissenting:
If Mrs. Rogers had bequeathed to members of her mother’s family by name, stocks or money amounting to $4,500, and it turned out that in fact she had only $4,000, the court would have found no difficulty in making a pro rata distribution of what she actually had, and the bequests would have been held good pro tanto. But instead of naming the legatees herself, Mrs. Rogers delegated that power to her husband. It was her right to do so. It is conceded that he exercised the power in good faith with intent to execute the donor’s will, but by a slip of memory, or a clerical miscalculation of amounts, he ap
So far I have referred only to the defect in the execution of the poAver with reference to the testatrix’s mother’s family, which was the basis of the decision of the court beloAv. But bad as it is in that aspect it is far worse as applied to the testatrix’s father’s family to which the appellant belongs. If the appointment to the mother’s family is set aside as bad then all the share that was to go to the father’s family is still in