Appeal, No. 172, Jan. T., 1952, from decree of Court of Common Pleas No. 5 of Philadelphia County, Dec. T., 1912, No. 2108, in Trust Estate of Annie Windolph. Decree affirmed.
Joseph J. Tunney, for appellant.
Russell Conwell Cooney, Henry S. Drinker and Boyd Lee Spahr, with them Walter B. Gibbons, Emanuel Friedman, C.J. Hepburn, Jr., John Ross, Henry W. Koons, Maurice Heckscher, Irving N. Kieff, E. G. Fielder, Jr., John E. Krout, and Norris, Lex, Hart & Eldredge, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE BELL
Annie Windolph, a resident of Philadelphia, executed a Deed of Trust dated July 16, 1909, which was attested by two disinterested witnesses. After giving the income for life to certain named beneficiaries and after their death to Zachary Taylor Shafer (her brother), she provided: "... and one share [of the corpus]
to such educational or other eleemosynary institution or charity as the survivor of the said George W. Shafer and Zachary Taylor Shafer shall have by his last will specifically appointed. Provided,... that nothing in his said will contained shall be construed as the exercise by him of the said right or power except a specific direction by him therein, to that effect."
Elizabeth Gravell, the mother of Annie Windolph, was appointed trustee. She died September 3, 1911, and on September 19, 1911, the Girard Trust Company was appointed as her successor. Annie Windolph died September 28, 1911.
Elizabeth Gravell created a Deed of Trust dated April 7, 1908, in which she gave Zachary Taylor Shafer a portion of the income for life and appointed the Girard Trust Company trustee. Zachary Taylor Shafer was given no power of appointment under this trust.
Zachary Taylor Shafer died on October 27, 1945, domiciled in California. He left a last Will dated March 22, 1938 in which he bequeathed his residuary estate to his daughter but failed to exercise the power of appointment. The following paper ...