Huddy's Estate

Opinion by

Mr. Justice Moschzisker,

Emma Huddy died May 23, 1896, and by her will she gave $15,000 in trust, the income thereof to be paid to her granddaughter Helen W. Fagan for life, and “from and immediately after her decease, in trust for such person or persons, and for such estate and estates as she, the said Helen W. Fagan, by her last will and testament shall direct, limit and appoint.” The donee of this power afterwards intermarried with Edwin H. Moore, and died testate, April 6,1910. In her will, after some small pecuniary and specific legacies, she bequeathed one-half of her residuary estate to her husband for life or until his re-marriage, the other half to her sisters and brother, and the remainder after her husband’s life estate to her sisters; she did not direct the payment of her debts, nor did she expressly exercise or refer to the power given her by the will of Emma Huddy.

The trustees of the Huddy Estate filed their account, and upon its audit Edwin H. Moore elected to take against his wife’s will; whereupon the auditing judge awarded the trust fund to the other residuary legatees named in the will, under the Act of June 4, 1879, P. L. 88. But, without acting upon any specific exception raising the point, the court, in banc, on its own motion, modified the adjudication and made the award to the executors of the donee of the power, saying, “The fund should have been awarded to the executors of the will of Helen W. F. Moore and not directly to certain of the residuary legatees;.....creditors, if any, have rights and their claims against the estate of that decedent may be heard only upon the settlement of her estate; and she, by blending her own and that which she appoints, has created a common fund, possibly for all purposes, though certainly for creditors and legatees ;..... In such cases there is nothing by which that which passes under the power can be distinguished from what passes by virtue of ownership.........What rights, if any, the husband who elects to take against the will has in this fund of $15,000 need not now be considered in that the question cannot be determined except upon the audit of the account of the executors of his wife’s will.”

It seems to us that the learned court below misconceived this case. It is not an instance where the donee of the power either expressly or by implication appointed the fund for the payment of her debts, nor did she so blend the fund with her own assets that it is impracticable to pay directly to her appointees. So far as the record shows there is no difficulty in making the payments directly to those now entitled to take under the will of Emma Huddy as designated in the will of the donee of the power. The appointees do not take through the donee; when her will, the instrument exercising the power, went into effect the property vested in them under and by virtue of the original will creating the power: Com. v. Duffield, 12 Pa. 277; Com. v. Williams, 13 Pa. 29; Pepper’s Est., 120 Pa. 235; Swaby’s Appeal, 14 W. N. C. 553. The Act of June 4, 1879, P. L. 88, Sec. 3, in nowise alters the law in this respect; its effect is to make the will of a donee of an unrestricted absolute power operate as an exercise of the power even though no such intention is expressed therein. The law now assumes that such was the intent of the testator unless a contrary intent appears by the will: Aubert’s Appeal, 109 Pa. 447. 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.

The Act of May 4,1855, P. L. 430, Sec. 1, provides that a surviving husband may elect to take against his deceased wife’s will “such share and interest in her real and personal estate as she can, when surviving, elect to take against his will in his estates.” Such an election affects the distribution of the “real and personal estate” of the deceased wife, the husband taking his share of her property as though there was no will; but it in nowise affects the distribution of property thereby directly or incidentally disposed of in the exercise of a power of appointment, for such property is not and never was the “real and personal estate” of the wife. Hence, Edwin H. Moore is entitled to share the trust fund with the other residuary legatees named in his wife’s will.

Even though there was no exception raising the exact point, the court below was within its rights in correcting what it conceived to be a fundamental error in the distribution, and Stitzel’s Est., 221 Pa. 227, rules nothing to the contrary. It might have been better, however, if counsel had been afforded an opportunity properly to present their views before such a radical modification as here made was finally determined upon..

The assignment of error is sustained and the record is remitted to the court below with directions to modify its' decree in accordance with the views herein expressed; the costs to be paid out of the fund.