Park's Estate

33 A. 884, 173 Pa. 190, 1896 Pa. LEXIS 681

Opinion

Opinion by

Mr. Chief Justice Sterrett,

This case was before the orphans’ court M banc on exceptions to the decree of the learned auditing judge, in which he hold “ that the net profits realized from the sales of the Adams and McKelvy properties belong to the corpus of the trust estate,” and thereupon dismissed appellant’s exceptions to the surviving trustee’s account and confirmed the same absolutely. The court being equally divided in opinion as to the controlling question before it, neither of the exceptions was sustained, and hence the decree of the auditing judge stood as the final decree of the court below. From that decree this appeal was taken, and the main question here, as in the court below, is what, under the facts of the case, properly constitutes “ income and profits,” and what “ principal.” That question has been so thoroughly considered and so satisfactorily solved by the learned president of the orphans’ court in bis dissenting opinion, that for reasons therein given we are all satisfied the court erred in bolding as it did.

Tbe decree is therefore reversed, with costs to be paid by appellant, and it is ordered that tbe record be remitted, with instructions to correct tbe surviving trustee’s account in accordance with said dissenting opinion.