Will. Power. Probate Court. Jurisdiction. Under R.L.c. 135, § 9, excepting from revocation by marriage so much of a will as is made in the exercise of a power of appointment, unless the property thus disposed of would pass in default of appointment to the persons who would have been entitled to it if it had belonged to the donee of the power and he had died intestate, in a case where in default of such appointment a fractional part of the property appointed would have gone to the donee of the power, the exercise of the power by the will of the donee is revoked by marriage as to such fractional part and stands unrevoked as to the remaining portion of the property appointed.
The question, whether an appointment by will is revoked by the marriage of the donee of the power, does not involve the validity of the will, and is not affected by a declaration concerning it in a decree of a probate court allowing the will.
LORING, J.
So far as a will is the exercise of a power of appointment, it is excepted from the act declaring that a marriage shall act as a revocation of a will not made in contemplation of it. The reason for this exception is that the donee of a power, in making an appointment, is acting for the donor in disposing of the donor's property. But where the property in question goes in default of appointment to those who would have been entitled to it had it been the property of the donee of the power and he had died intestate, a case arises where the property to be disposed of by the appointment is for all practical purposes the property of the donee of the power, and for that reason it is taken out of the exception and left within the operation of the act. R.L.c. 135, § 9.
In the case at bar the one undivided seventh which in default of appointment went to Susan Trumbull, afterwards Mrs. Price, comes within the modification of the exception and is revoked by her marriage. We see no difficulty in holding that the effect of the statute (now R.L.c. 135, § 9,) is to revoke the appointment so far as it operates on property which in default of appointment belongs to the donee of the power, and at the same time in holding that it is unrevoked so far as it operates on property which in default of appointment goes to strangers.
The question whether the appointment by will is revoked by the subsequent marriage of the donee of the power is a question arising as to the exercise of the power, not as to the validity of the will. For that reason it is not concluded by the terms of the decree of the Probate Court in allowing the will in question.
Decree reversed.