Appeal of Getz , 23 W.N.C. 562 ( 1889 )

Opinion,

Mr. Chief Justice Paxson :

It was decided in Aubert’s Appeal, 119 Pa. 48, that the principal of the fund in controversy could not be distributed until after the death of Mrs. Getz. In the meantime no disposition was made by the testator of the share of the income given to Thomas II. DeSilver, who died September 16, 1886, without leaving issue him surviving. The court below held that this was a contingency not provided for by the testator, and that as to said income he died intestate. The amount of income for distribution, as shown by the account, was only @1.74, which the court directed to be retained by the accountant, and hereafter accounted for.

No exception can be taken to this decree. Caroline E. Getz has appealed from it, alleging that she is entitled to the whole of the income. That will be decided hereafter when there is income to be distributed. At present there is none. The amount in the hands of the accountant is nominal, while the sum of $98.50 is awarded out of income to accrue.

The learned Orphans’ Court, after holding that there was an intestacy as to the one half of the income, was of opinion that as the testator died without issue, “ one half of said income is payable to his widow or her executor, she being now deceased, and one half to the testator’s heirs and next of kin, according to our intestate law.” It appears, however, that the widow of the testator died in 1883, while Thomas H. DeSilver, the life-tenant, died in 1886. It is suggested to the learned judge of the Orphans’ Court, whether any portion of the income can go to the widow of the testator, inasmuch as she died before Thomas H. DeSilver. Until the death of the latter it could not be known that he would leave no issue, and until that fact could be ascertained I do not see how any interest could vest in the widow of the testator. This cannot be decided now, and is a mere suggestion for the consideration of the Orphans’ Court when distribution comes to be made of this income. For the same-reason we cannot now pass upon the claim of Mrs. Getz. The decree below is unassailable, and error does not lie to the mere opinion of the court below. It lies only to the decree.

Decree affirmed, and the appeal dismissed at the costs of the appellant.