The opinion of the court was delivered by: DUSEN
The trial judge makes the following Findings of Fact and Conclusions of Law:
1. This suit was instituted on May 13, 1953 by plaintiffs for a refund of federal estate tax assessed and collected.
2. The Collector of Internal Revenue for the First District of Pennsylvania, Francis R. Smith, to whom the payments hereinafter referred to were made, retired from office on November 11, 1952.
3. Joseph B. Myers died on July 27, 1875, and under his will 'certain estates and property' (see Exhibits B and C)
were left to his niece, Hannah Ann Hieskell, the decedent's mother, in trust for her life with a power of appointment by will.
4. Hannah Ann Hieskell died on July 17, 1884, leaving a will exercising the power, whereby she created a trust to pay the net income thereof to her two children, Colson Hieskell, Jr. and Mary H. Maule, the decedent, for life, and at the decease of each, 'the capital of one-half of the estate hereby willed shall go to his or her children living at his or her death, and the issue of any of his or her children who may be then dead, leaving issue, in equal shares,' (see Exhibit B); with a cross-remainder in case either died without issue. She further provided that each of her children should have the right to appoint by will, or writing in the nature thereof, the whole or any part of his or her share. Colson Hieskell, Jr., the decedent's brother, died May 21, 1922, intestate and without issue.
6. On July 16, 1946, the decedent executed her will (Exhibit A). The fifth clause thereof reads as follows:
'Fifth: All the rest, residue and remainder of my estate, real, personal and mixed, of whatsoever kind or description and wheresoever situate, and whether vested or in trust subject in any wise to my power of disposition, limitation and appointment, I give, devise and bequeath as follows: One-half thereof to my daughter, Ethel Maule Thompson, absolutely, and the other one-half thereof to my daughter, Virginia Maule Herring, absolutely.'
7. The plaintiffs were regularly appointed executrices of the estate of the said Mary H. Maule, deceased, by the Register of Wills of Montgomery County, Pennsylvania, on November 24, 1947, and are still acting as such. Plaintiffs reside in Haverford, Pennsylvania.
8. The decedent died possessed of property having a value of $ 205,553.05 (see Exhibit P-1).
9. The entire individual estate of Mary H. Maule passed to the specific and pecuniary legatees named in paragraphs Second to Fourth, inclusive, of her will, and no part of such estate passed to the residuary legatees named in paragraph Fifth of that will.
10. The property over which decedent had a power of appointment had a value of $ 54,213.07, according to plaintiffs' refund claim (see Exhibit D).
11. In an adjudication dated April 6, 1948, the Orphans' Court of Philadelphia County, Pennsylvania,
ruled that the residuary clause in decedent's will was 'an ineffectual appointment' of the power of appointment given to her under the will of Hannah Ann Hieskell, 'since she gives the residue to her two daughters in equal shares, and they are the same persons who take the same shares under the will of Hannah Ann Hieskell ...