Buckwalter's Estate

30 Pa. D. & C. 93, 1937 Pa. Dist. & Cnty. Dec. LEXIS 137

• Court: Pennsylvania Orphans' Court, Philadelphia County
• Decided: September 24, 1937
• Docket: no. 1083 of 1937
• Status: Published

Opinions

Ladner, J.,

The earnest argument of counsel for exceptant lias left a majority of the court unconvinced that the auditing judge erred in his disposition of the claim by exceptant for a pro rata share of the income in addition to the $15 a week payments specifically directed to be paid him out of principal from testatrix’s death to settlement of her estate;

The facts here distinguish the case from Band’s Estate, supra, and Jackson’s Estate, supra. To what the learned auditing judge said we merely add that the bequest to the executor in trust of the $20,000 in securities at their then market value can only mean at the time the specific securities are awarded or set aside for the trust, viz., upon the approval of the schedule of distribution. Since the- trustee is only authorized to pay the income therefrom, i. e., from the securities thus set aside, it follows it cannot be paid from any other unidentified part of the estate. It was evidently with this in mind that testatrix directed the payment of $15 per week from immediately after her death until the “judicial settlement of her estate”, to be charged against the principal, that is, her whole estate.

We agree, therefore, with the auditing judge’s statement that testatrix did not intend a double benefit during this period, but that the two provisions should take place in succession.

The exceptions are dismissed and the adjudication is confirmed absolutely.