Herbert O. Schaeffer, Harrisburg, for appellant.
Metzger & Wickersham and Maurice R. Metzger, Harrisburg, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Arnold, JJ.
[ 167 Pa. Super. Page 377]
Gertie R. Lentz died, testate, without issue, on September 14, 1947. Her will was probated, letters c. t. a.
[ 167 Pa. Super. Page 378]
were granted, and in due time an account was filed. As stated in the opinion of the learned president judge of the lower court:
'In order to understand the issues it is necessary to outline some facts which are not in dispute.
'The will of the decedent was executed on the (blank) day of November, 1912. At that time the decedent has a husband living and six living brothers and sisters. She also had a sister who was then deceased but who had one son, then living. Almost thirty five years later the testatrix died without having changed her will. Her husband and all of her brothers and sisters were then dead. She was, however, survived by the issue of deceased brothers and sisters. The closest surviving relatives were nephews and nieces, but there were also surviving issue of deceased nephews and nieces.
'The will gave the husband a life estate in all of the property of the decedent with a limited power to consume. Upon his death, all property was to be converted into cash. The will then provided:
'* * * the fund so arising from both personal and real estate to be commingled and the same after all proper expenses be paid, to be equally divided and distributed to and among my brothers and sisters or to the issue of such as then may be dead.'
The accountant proposed to distribute the fund per capita among the nephews and nieces and per stirpes among the issue of deceased nephews and nieces. Exceptions were filed by the issue of Elizabeth Reigle Sheetz, a sister who died prior to the date of the will, and by nephews and nieces of decedent, children of a brother of decedent who was living at the time the will was executed. The court entered a decree sustaining the exception filed by the issue ...