Appeal from decree of Orphans' Court of Philadelphia County, No. 3423 of 1958, in re estate of Albert W. Schede, deceased.
Sidney E. Herold, for appellant.
Morris H. Goldman, with him Richard N. Weiner, George M. Brodhead, John B. Gest, and Wolf, Block, Schorr & Solis-Cohen, and Rawle & Henderson, for appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Roberts concurs in the result. Mr. Justice Cohen dissents.
The question involved in this appeal is whether Lucille Schede Brooks validly and effectively exercised the special power of appointment given her by Albert W. Schede, her first husband.
Schede died June 1, 1957 leaving a last Will dated April 11, 1953. In his Will he created two trusts which were primarily for the benefit of his wife Lucille, -- one a so-called marital deduction trust and the other a residuary trust. This appeal involves only "the marital deduction trust." In this trust, testator gave Lucille all of the net income for her life and the right and power to withdraw principal not exceeding $5,000 annually.*fn* He then pertinently provided in Paragraph Fourth (d):
"(d) Upon the death of my wife, the principal thereof shall be paid over and distributed unto such
person or persons, excluding herself, her estate or her creditors, as my wife may by her last will and testament or any writing in the nature thereof designate and appoint by specifically referring to this Will,*fn** and upon her failure so to do, the trust shall continue and shall be divided into two separate trusts hereinafter referred to as Trust A and Trust B."
After Schede's death, Lucille married Bernard F. Brooks, the present appellant. Lucille died May 4, 1965 leaving a substantial estate of her own. In her Will she pertinently provided: "Fourth: I give, devise and bequeath all of the rest, residue and remainder of my property, both real and personal of every kind and nature and of which I may have a power of appointment to my husband, Bernard F. Brooks absolutely and forever.
"Fifth: In the event that my husband, Bernard F. Brooks predeceases me or in the event that we both die in a common disaster, I then, give, devise and bequeath all of the rest, residue and remainder of my property, both real and personal, and of which I may have ...