Opinion by
Porter, J.,
The question depends mainly on the will of Sarah Jane Rdgers. Her intention, and not the intention of Evans Rogers, must furnish the governing rule. The clause of the will of the testatrix which is material to this issue is as follows: “All the rest and residue of my property, real, personal and mixed, I give and bequeath to my beloved husband,' for his use and benefit during his life, .... and I do authorize and empower him to dispose of the same by his will 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; but in case he fails to make such disposition, I give and bequeath to my mother’s family as follows : ” (Here follow pecuniary legacies to a number of members of the family of the mother, each being named, aggregating $4,500) “ and the rest and residue to my father’s family in the following manner: ” (Here follow pecuniary legacies, to individuals named, aggregating $3,000) [632]*632“the balance to be divided, as follows: one-third to my uncle, William Marshall, his heirs or assigns, and the other two-thirds to my aunt, Susanna Pierce, her heirs or assigns.”
There can be no question that Evans Rogers, now deceased, attempted to exercise the power of appointment thus conferred upon him by the last will of his wife. His will specifically refers to the po'wer of appointment, and declares his purpose to execute it, and then proceeds : “ Therefore in the exercise of this authority and power I give and bequeath said residue (my executors hereinafter named first to pay the collateral tax of five per cent out of said residue) as follows :'” (Here follow pecuniary legacies to individual members of the family of his wife’s mother, aggregating $4,500; and pecuniary legacies to individuals named who were members of the family of his wife’s father, including one legacy of $14,000 to Sarah Jane Pierce, the appellant, which aggregated $23,000, and a bequest of the rest and residue of his late wife’s estate to Sarah Jane Pierce.) The appointments aggregating $4,500 to members of the family of the wife’s mother, and the direction that the collateral inheritance tax on those legacies should be paid out of the fund, practically brought the appointments to the family of the wife’s mother up to $4,725, but the direction that the collateral inheritance tax be paid upon the legacies is separable from the bequests, and may be disregarded.
For reasons satisfactory to herself, and of which she was the only judge, Sarah Jane Rogers empowered her husband to appoint $4,000 of this fund to members of the family of her mother, and the residue thereof to members of the family of her father; but in providing for the case of his failure to make a valid disposition under this power, she bequeathed to individual members of the family of her mother sums aggregating $4,500, and the rest and residue, after deducting the $4,500, she bequeathed to individual members of the family of her father. Evans Rogers, in attempting to execute the power, appointed $4,500 of the fund, instead of $4,000 which he was authorized to appoint, to members of the family of his wife’s mother, and the balance to members of the family of his wife’s father. In selecting the members of the respective families he chose individuals other than those to whom Sarah Jane Rogers bequeathed! aiicl devised the property in case of the failure of [633]*633her husband .to appoint,-and the property should in accordance with her own will be divided upon the basis of $4,500 to.the 'famiTy of’her-mother and the remainder of the estate to the “family of her father. The will of the donee of the power did hot appoint the estate in the proportions which he was authorized to do, nor, having exceeded the power and divided the property between the respective families, upon the basis adopted by the donor, in- her devise over upon his failure to validly appoint, did he select the individuals to whom the donor bequeathed it in case the division was to be made on that basis. -
The power was special and restricted and was to be strictly executed; if otherwise executed its execution amounted to nothing, as the appointer had no estate in himself to give, and no authority to give but that expressly conferred: Woods’ Estate, 1 Pa. 368; Horwitz v. Norris, 49 Pa. 213 ; Stephenson v. Richardson, 88 Pa. 40 ; Bingham’s Appeal, 64 Pa. 345 ; Wickersham v. Savage, 58 Pa. 365; Pepper’s Appeal, 120 Pa. 235. That the appointments under the will of the donee exceeded his power cannot be questioned. He appointed to individual members of the family of his wife’s mother $500 more than he was authorized to appoint, and to individual members of the family of his wife’s father $500 less than he was authorized to appoint. Where, under a special and restricted power, an appointment is made in excess of the power, whether the excess renders the appointment wholly void depends upon whether the excess is distinct and separable from the authorized portion, of the appointment: Lawrence’s Estate, 136 Pa. 354. The auditor, to whose report exceptions were sustained by the court below, held that the legacies to the members of the family of the mother of the donor should abate proportionally, so as to reduce the aggregate amount of the legacies to the members of that family to $4,000, and that said sum of $500, thus secured, should be awarded to the appellant, a member of the family of the donor’s father, as the legatee of the residue of the donor’s estate, under the will of the donee. That this sum which the donee had appointed to the family of the wife’s mother, in excess of his power, could not be so disposed of seems clear, for the reason that the appellant could only take because it had been validly appointed to her by the donee under [634]*634his power, whereas the donee had appointed that very money to other parties : Salter v. Howell, 15 S. & R. 188.
The opinion of the learned judge of the court below, which will appear in the report of this case, fully vindicates his conclusion that the appointment made by the donee, to individual members of the family of his wife’s mother, is not separable from the part which was authorized by the power, and that it is not possible to ascertain from the will of the donee how he would have apportioned the $4,000, which under the power he had authority to appoint to members of the family of his wife’s mother. “ Where a party undertakes to execute a power, but by mistake does it imperfectly, equity will interpose to carry his very intention into effect'in aid of those who are peculiarly within its protective power; that is, creditors, purchasers, wives and children : ” 1 Story Equity Jur., sec. 170. But equity will not lend its aid in favor of a volunteer, nor give any assistance where both the remainder-man, under the alternative devise over of the donor, and the appointees are volunteers, and stand in equal equity: Porter v. Turner, 3 S. & R. 108 ; Slifer v. Beates, 9 S. & R. 166.
The intention of the donor, with regard to the power of appointment which she intrusted to her husband, is to be gathered from her whole will. We do not say that had the donee appointed to members of the family of the wife’s mother a sum less than $4,000, that such appointment would not in itself be valid; it is not necessary to decide that question. We are of opinion, however, that as between the authority to appoint to the family of the wife’s mother and the family of her father, the power was not divisible.
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Opinion by
Porter, J.,
The question depends mainly on the will of Sarah Jane Rdgers. Her intention, and not the intention of Evans Rogers, must furnish the governing rule. The clause of the will of the testatrix which is material to this issue is as follows: “All the rest and residue of my property, real, personal and mixed, I give and bequeath to my beloved husband,' for his use and benefit during his life, .... and I do authorize and empower him to dispose of the same by his will 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; but in case he fails to make such disposition, I give and bequeath to my mother’s family as follows : ” (Here follow pecuniary legacies to a number of members of the family of the mother, each being named, aggregating $4,500) “ and the rest and residue to my father’s family in the following manner: ” (Here follow pecuniary legacies, to individuals named, aggregating $3,000) [632]*632“the balance to be divided, as follows: one-third to my uncle, William Marshall, his heirs or assigns, and the other two-thirds to my aunt, Susanna Pierce, her heirs or assigns.”
There can be no question that Evans Rogers, now deceased, attempted to exercise the power of appointment thus conferred upon him by the last will of his wife. His will specifically refers to the po'wer of appointment, and declares his purpose to execute it, and then proceeds : “ Therefore in the exercise of this authority and power I give and bequeath said residue (my executors hereinafter named first to pay the collateral tax of five per cent out of said residue) as follows :'” (Here follow pecuniary legacies to individual members of the family of his wife’s mother, aggregating $4,500; and pecuniary legacies to individuals named who were members of the family of his wife’s father, including one legacy of $14,000 to Sarah Jane Pierce, the appellant, which aggregated $23,000, and a bequest of the rest and residue of his late wife’s estate to Sarah Jane Pierce.) The appointments aggregating $4,500 to members of the family of the wife’s mother, and the direction that the collateral inheritance tax on those legacies should be paid out of the fund, practically brought the appointments to the family of the wife’s mother up to $4,725, but the direction that the collateral inheritance tax be paid upon the legacies is separable from the bequests, and may be disregarded.
For reasons satisfactory to herself, and of which she was the only judge, Sarah Jane Rogers empowered her husband to appoint $4,000 of this fund to members of the family of her mother, and the residue thereof to members of the family of her father; but in providing for the case of his failure to make a valid disposition under this power, she bequeathed to individual members of the family of her mother sums aggregating $4,500, and the rest and residue, after deducting the $4,500, she bequeathed to individual members of the family of her father. Evans Rogers, in attempting to execute the power, appointed $4,500 of the fund, instead of $4,000 which he was authorized to appoint, to members of the family of his wife’s mother, and the balance to members of the family of his wife’s father. In selecting the members of the respective families he chose individuals other than those to whom Sarah Jane Rogers bequeathed! aiicl devised the property in case of the failure of [633]*633her husband .to appoint,-and the property should in accordance with her own will be divided upon the basis of $4,500 to.the 'famiTy of’her-mother and the remainder of the estate to the “family of her father. The will of the donee of the power did hot appoint the estate in the proportions which he was authorized to do, nor, having exceeded the power and divided the property between the respective families, upon the basis adopted by the donor, in- her devise over upon his failure to validly appoint, did he select the individuals to whom the donor bequeathed it in case the division was to be made on that basis. -
The power was special and restricted and was to be strictly executed; if otherwise executed its execution amounted to nothing, as the appointer had no estate in himself to give, and no authority to give but that expressly conferred: Woods’ Estate, 1 Pa. 368; Horwitz v. Norris, 49 Pa. 213 ; Stephenson v. Richardson, 88 Pa. 40 ; Bingham’s Appeal, 64 Pa. 345 ; Wickersham v. Savage, 58 Pa. 365; Pepper’s Appeal, 120 Pa. 235. That the appointments under the will of the donee exceeded his power cannot be questioned. He appointed to individual members of the family of his wife’s mother $500 more than he was authorized to appoint, and to individual members of the family of his wife’s father $500 less than he was authorized to appoint. Where, under a special and restricted power, an appointment is made in excess of the power, whether the excess renders the appointment wholly void depends upon whether the excess is distinct and separable from the authorized portion, of the appointment: Lawrence’s Estate, 136 Pa. 354. The auditor, to whose report exceptions were sustained by the court below, held that the legacies to the members of the family of the mother of the donor should abate proportionally, so as to reduce the aggregate amount of the legacies to the members of that family to $4,000, and that said sum of $500, thus secured, should be awarded to the appellant, a member of the family of the donor’s father, as the legatee of the residue of the donor’s estate, under the will of the donee. That this sum which the donee had appointed to the family of the wife’s mother, in excess of his power, could not be so disposed of seems clear, for the reason that the appellant could only take because it had been validly appointed to her by the donee under [634]*634his power, whereas the donee had appointed that very money to other parties : Salter v. Howell, 15 S. & R. 188.
The opinion of the learned judge of the court below, which will appear in the report of this case, fully vindicates his conclusion that the appointment made by the donee, to individual members of the family of his wife’s mother, is not separable from the part which was authorized by the power, and that it is not possible to ascertain from the will of the donee how he would have apportioned the $4,000, which under the power he had authority to appoint to members of the family of his wife’s mother. “ Where a party undertakes to execute a power, but by mistake does it imperfectly, equity will interpose to carry his very intention into effect'in aid of those who are peculiarly within its protective power; that is, creditors, purchasers, wives and children : ” 1 Story Equity Jur., sec. 170. But equity will not lend its aid in favor of a volunteer, nor give any assistance where both the remainder-man, under the alternative devise over of the donor, and the appointees are volunteers, and stand in equal equity: Porter v. Turner, 3 S. & R. 108 ; Slifer v. Beates, 9 S. & R. 166.
The intention of the donor, with regard to the power of appointment which she intrusted to her husband, is to be gathered from her whole will. We do not say that had the donee appointed to members of the family of the wife’s mother a sum less than $4,000, that such appointment would not in itself be valid; it is not necessary to decide that question. We are of opinion, however, that as between the authority to appoint to the family of the wife’s mother and the family of her father, the power was not divisible. The authority of the donee to appoint to the members of the family of the wife’s father was confined to “ the balance,” after appointing $4,000, as authorized by the donor, to the family of the wife’s mother. The will ■of the donor clearly indicates that it was not her intention that the donee should appoint to the members of her father’s family until the donee had made such an appointment as her will authorized to the members of the family of her mother. Had the donee expressly declined to appoint the $4,000 to the family of the mother of the donor, he would not have had authority to appoint the amount in excess of $4,000 to the family of the donor’s father, for such an appointment would have come di[635]*635rectly in conflict with the alternative bequest over, by the donor, which provided that in case the donee failed to make the disposition which she authorized, certain designated members of her mother’s family should receive in the aggregate $4,500. We are of opinion that the will of Evans Rogers was not a valid exercise of the power of appointment, and that the distribution as made by the court below, under the will ol Sarah Jane Rogers, was correct.
The decree is affirmed.
Rice, P. J., and Morrison, J., dissent.