Brewster's Appeal , 7 Sadler 604 ( 1888 )

Opinion by

Mu. Justice Sterrett:

The questions presented by this record were fully considered and correctly decided by the orphans’ court. The will in question was rightly construed, and, for reasons given at length in the report of the learned auditing judge, supplemented by the opinion of the court, the decree should be affirmed.

In making provision for the support and maintenance of her five children, testatrix evidently assumed her estate would yield a clear annual income of at least $1,000. So confidently does she appear to have anticipated an annual income of more than that amount, that in the same connection she directed the excess to be applied to “the payment of the principal of all mortgages, ground rents, or other encumbrances” on her estate; and, when these were all paid, the same to be invested and treated as part of the corpus of her estate. This disposition of any excess over $1,000, is an answer to the suggestion that when the income proved to be less than $1,000, the deficit should be made up from the surplus in after years.

If the specific directions of the will, in regard to annual income, are carried out, such a thing as undisposed of or surplus income could never be possible. It is very evident, therefore, that testatrix never contemplated less than $1,000 net income in any one year, and for that reason made no provision for supplying any possible deficiency.

The necessary result of a proper construction of the will is that testatrix’s sister is entitled to receive from the trustees the shares of the income to which the children who resided with her during their minority were entitled, whether those shares amounted to the full sum of $200 each or less, also the sum of $52 per annum from the shares of each of the children who did not reside with her, and lastly an annuity of $260 from the income of the estate, for life.

The basis of settlement adopted by the court being correct, we discover no error in the calculation. The whole subject was so fully considered by the court below that further elaboration is unnecessary. Neither of the specifications of error is sustained.

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