Appeal, No. 88, March T., 1953, from decree of Orphans' Court of Allegheny County, 1939, No. 4760, in Estate of William Zoller. Decree affirmed.
Edmund W. Ridall, Jr., for appellant.
No argument was made nor brief submitted for appellee.
Before Stern, C.j., Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
This is a will construction case. The question presented is whether, upon the termination of an active trust for "maintenance and upkeep" of devised real estate, upon the sale of such real estate, the unexpended portion of the trust fund passes to the surviving grantor-devisee or forms part of testator's residuary estate. A majority of the court below, one Judge dissenting, ruled that such unexpended fund formed part of the residuary estate. The surviving devisee has appealed.
William Zoller, testator, died September 16, 1927. He was survived by seven children -- six daughters and
one son -- who are the residuary devisees and legatees. Two of such residuary shares are in trust. Three of his daughters were unmarried: Rosella, Henrietta (appellant) and Mary.
By the fourth item of the will, which is the one requiring construction, testator provided: "FOURTH: I devise to my three daughters, Rosella Zoller, Henrietta Zoller and Mary Mathilda Zoller, and to the survivor or survivors as joint tenants and not as tenants in common, my farm and summer home... and I direct my Executors or Trustees herein named to set apart for them or their survivor, from my estate, the sum of Forty Thousand ($40,000.00) Dollars and to hold the same in trust paying thereout each year to my said three daughters, or the survivor or survivors, the sum of Two Thousand ($2000.00) Dollars for the maintenance and upkeep of said farm and summer home until said fund, and the earnings and income thereof are exhausted. I direct that no partition or sale of said above described premises be made within a period of Twenty years from and after my deceased, and in case this provision as to sale or partition thereof be not complied with then, and in that case any part of said sum of Forty Thousand ($40,000.00) Dollars then remaining unexpended in the hands of said Executors or Trustees shall revert to and become part of my residuary estate."
The trustees as directed set aside the $40,000 trust fund and have since administered it. The real estate was not sold within twenty years but was retained until 1951 -- a period of twenty-four years -- when appellant, as surviving joint tenant sold it. During the twenty-four year period the trustees paid the devisees and the survivor $2000. each year for the "maintenance and ...