The opinion
Harvey, J.
(concurring): Having written the opinion of the court, naturally I concur in it and would write no more if it were not for the new questions raised by the concurring opinion of Mr. Justice Allen which, after quoting from the will, is predicated upon the assertion: “It is clear that the widow was given the power to dispose of the property by deed or by will. . . . The real question then is whether a gift over on intestacy is good.” I think this opinion should not have been written, for two reasons:
First, the widow did not leave á will; the questions whether she was given power by the will of her husband to dispose of the property by will, and, if she had such power, the effect of her not exercising it, are questions which were not raised in the trial court; were not decided by it; were not presented to this court as questions to be decided here; were not argued by counsel, and were not considered by this court in consultation. The first time the other members of the court had any intimation that anyone having anything to do with this case had the notion these questions were presented by this appeal was when Justice Allen, after having the opinion of the court on his desk for nearly three weeks, sent in his concurring opinion only three days before the opinion, without it, would have been handed down.
Second, the premise on which the separate opinion rests—that by the testator’s will “the widow was given the power to dispose of the property ... by will,” is unsound as a matter of law. The applicable rule, as I understand it, may be stated thus: When a testator gives property to A, with power to use and dispose of it during his lifetime, and specifically gives to B that part of the property not thus consumed, A has no power to dispose of the property by will. *154 'The reason for the rule is that to permit A to dispose of the property by will would be to permit A to defeat the will of the testator, who .already by his will had given the property to B. In 69 C. J. 848, ■treating of the subject of the various powers given under differently worded wills, it is said:
“A power to dispose of property, ... is not exercisable by will, . . . where there is a gift over of whatever of the property remains undisposed of .at the donee’s death, and nothing to indicate that a disposition by will was •contemplated by the donor,” (citing many cases, including Smith v. Judge, 133 Kan. 112, 453 , 298 Pac. 651 , 1 P. 2d 79 .)
Later cases to the same effect are: Masterson v. Masterson, 344 Mo. 1188 , 130 S. W. 2d 629 ; Cochran v. Groover, 156 Ga. 323 , 118 S. E. 865 ; Davis, Administrator, v. Bottoms, 258 Ky. 228 , 79 S. W. 2d 963 ; Carpenter v. Lothringer, 224 Ia. 439 , 275 N. W. 98 ; Phillipson v. Watson, 149 Kan. 395, 403 , 87 P. 2d 567 .