Appeals, Nos. 90 and 106, Jan. T., 1955, from decree of Orphans' Court of Delaware County, Dec. T., 1931, No. 28, in Estate of George McFadden, Deceased. Decree affirmed.
George F. Baer Appel, with him Francis J. Carey, Jr., George H. Class, Charles, C. Townsend, Butler, Beatty, Greer & Johnson, and Townsend, Elliott & Munson, for appellants.
Ernest Scott, with him John Bartol and Pepper, Bodine, Frick, Scheetz & Hamilton, for certain appellees.
William H. S. Wells, with him Saul, Ewing, Remick & Saul, for certain appellees.
Allen S. Olmsted, 2nd, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE BELL
George McFadden died testate on January 5, 1931. He was survived by his wife, who died in 1952, and by four children, Caroline B. Ewing, Emily B. Harrison, both of whom are living, Alexander B. McFadden, who died in 1948, leaving children still living, and George H. McFadden, who died on April 19, 1953, without issue.
The testamentary trustees filed an Account for the purpose of determining, inter alia, who was entitled to George H.'s share of the income and principal. Article Fourth (3) of testator's lengthy will provides as follows: "... If any child of mine, or the issue of any deceased child of mine, shall die without issue,*fn* then the share of such child or issue of a deceased child so dying in the income and in the principal of my estate shall pass to and vest in his or her surviving brother or brothers, upon the same uses, limitations and trusts as to the shares originally given to such surviving brother or brothers; if there be no surviving brother or brothers, then such shares of income and principal shall pass to and vest in his or her surviving sisters and their issue, upon the same uses, limitations and trusts."
The exact situation hereinabove specifically provided for by the testator has occurred, namely, a child of his died without issue. The testator clearly and specifically provided that in that event the share of such child "in the income and in the principal of my estate shall ... vest in his ... surviving brother [there was no surviving brother] ...; if there be no surviving brother ... then such shares ... shall ... vest in his ... surviving sisters and their issue, ...."
The Court below awarded George H.'s share of principal and income to his two surviving ...