Yetter's Estate

Opinion by

Mr. Justice Gbeen,

The will of Eve Yetter contains two residuary clauses. One is the clause which gives the fund of three thousand dollars bequeathed to a trustee for John Minton, or the remainder of it left at his death, “ to be divided equally share and share alike to or among my brothers and sisters or their lineal heirs.” And the other is the general residuary clause at the end of the will in these words, “ I further order and direct the rest and residue of my worldty goods to be equally divided among my brothers and sisters or their lineal heirs.” The same persons precisely take both the remainder of the trust fund and the general residue of the estate, and the identity of their interests prevents any issue arising from the circumstance that the two funds are of separate origin. It is conceded, as it must be, that, the fund for distribution being personalty, the brothers of the half blood and their descendants take equally with those of the whole blood and their descendants.

Some contention is made that the legacy of the trust is to be treated as an absolute gift of the whole fund. But this position is entirely untenable. The legacy is not a gift of the fund for life directly to the legatee with the right to use the same or to dispose of it, but a legacy expressly to a trustee who is to invest the same and pay over the interest to the legatee during his life, with a right in the trustee to pay such portion of the principal as may be necessary in case, from sickness or misfortune, the interest should be insufficient to supply the wants or needs of the cestui que trust. There is no power of appointment or disposition conferred either upon the beneficiary or the trustee, but an express limitation over of the principal of the fund on the death of the beneficiary to other persons specifically named. There is no question that the interest of John Minton was merely a life interest in the income of the fund, and of so much of the principal as might be necessary for 'his support. The question is directly ruled by the line of cases of which Myer’s Appeal, 49 Pa. 111; Eichelberger’s Estate, 135 Pa. 160, and Dull’s Estate, 137 Pa. 112, are examples. The last of these cases was almost precisely similar to this, as •the legatee was to receive only the interest of the fund, but the .principal might be used if necessary for his support.

The only remaining question is, whether the relations of the half blood, not having received any part of the first two distributions, may be equalized with those of the whole blood who took all of those distributions. This question also is entirely free from doubt. In Grim’s Appeal, 109 Pa. 391, we held that ■where, on a partial distribution of an intestate’s estate, one of the distributees does not appear, and the entire fund for distribution is awarded to those who do appear and make claim, the inequality will be corrected on a subsequent distribution of ■other funds belonging to the decedent’s estate, by awarding to the one who received nothing on the first distribution, enough to make up his proportionate distributive share of both funds ; ■if the second fund is insufficient to make him equal with the .distributees of the first fund, the whole of the second fund will be awarded to him. The rule is so manifestly just and .equitable that it needs no vindication, and it is not necessaiy to repeat the reasoning of Mr. Justice Gordon in the opinion •delivered by him in the last case. The fact that the appellees, who are of the half blood, were omitted from the former distributions constitutes no reason why they should not have now what they would certainly have received then if they had had knowledge of the distributions and had participated in them. The ruling in Grim’s Appeal was repeated in Grim’s Estate, 147 Pa. 190.

The decree of the court below is affirmed at the cost of the ¿appellants.