The opinion
LINDLEY, District Judge
(concurring).
I am in accord with the conclusion reached, but it seems to me unnecessary to decide whether, under Blair v. Com’r, 300 U.S. 5 , 57 S.Ct. 330 , 81 L.Ed. 465 , and Lyeth v. Hoey, 305 U.S. 188 , 59 S.Ct. 155 , 83 L.Ed.-, 119 A.L.R. 410 , decided Dec. 5, 1938 and other decisions of the Supreme Court, the character of the power involved is to be determined from consideration of the federal law alone, for I am of the opinion that under the laws of Wisconsin, also, the power " was general in character. When it was exercised, the estate of the deceased, under the Wisconsin statutes, was augmented by the amount of property included in the devises and béquests as to which right of appointment existed.
The state statute is as follows:
“232.05 General power. A power is general when it authorizes the alienation in fee, by means of a conveyance, will, or charge of the lands embraced in the power, to any alienee whatever.”
“232.06 Special power. A power is special: (1) When the person or class of persons to whom the disposition of the lands under the power to be made are designated. (2) When the power authorizes the alienation by means of a conveyance, will, or charge of a particular estate or interest less than a fee.”
In asserting that the power involved is special in character, petitioner relies upon Cawker v. Dreutzer, 197 Wis. 98 , 221 N. W. 401 . That case concerned a power of appointment in favor of two daughters who were to have the income from the res for life with power of appointment by will. In default of such appointment, the issue of each daughter was to take her interest, and, if one of the daughters died without having exercised the power, the corpus of her interest was' to pass to the other daughter, if surviving, or, if not, to that daughter’s issue. One of the daughters filed a petition asking that her power be decreed to be general and her estate a fee. The time for exercise of the power had not arrived. As I read the case, the point involved here was not decided. Any language indicating the conclusion urged by petitioner was unnecessary to the decision. The court refused to pass upon the daughter’s request that she had the absolute power of disposition on the ground that the request was not presented to or considered by the trial court. The Supreme Court left the question open.
Here the time for exercise of the power has arrived and it has been executed. I find nothing in the decisions indicating that the Supreme Court' of Wisconsin would construe it as other than general in character. Indeed, that court, in the opinion cited, took cognizance of the fact that the Wisconsin statute defining powers of appointment had been adopted from New York and said that it should have the same interpretation in Wisconsin as in New York. Under the New York decisions, such a power as is here being considered is general. In re Lathers’ Will, 137 Misc. 222 , 243 N.Y.S. 380 ; Farmers’ Loan & Trust Co. v. Shaw, 56 Misc. 201 , 107 N.Y.S. 337 .
Furthermore, the power of veto, if any can be attributed to the trustees, never having been exercised and the power to appoint having come to fruition, that is, the property having been disposed of un *643 der the power, it should be included in the gross estate of the deceased. To my mind the Wisconsin statute so indicates, and, in the absence of an authoritative decision to the contrary, the Board properly included the property passing under the power. The situation is akin to that where a vested remainder is created, subject to a life estate, and the life tenant has, coupled with his life estate, the power to dispose of the fee and thus defeat the remainder. Quite generally it is the law that such a power to divest the remainder does not prevent the latter from vesting immediately. Burke v. Burke, 259 Ill. 262 , 102 N.E. 293 ; Bradley v. Jenkins, 276 Ill. 161 , 114 N.E. 582 ; Linn v. Campbell, 289 Ill. 347 , 124 N.E. 622 .
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