Appeals, Nos. 220 and 221, March T., 1958, from decrees of Orphans' Court of Allegheny County, No. 5032-A1 of 1946, in re estate of Alice Maud Palmer Campbell, deceased, trust for John Campbell et al. Decrees affirmed.
Craig Stockdale, with him Snee and Stockdale, for appellants.
Charles J. Spinelli, with him Edward A. Witt, and Spinelli & McLean, for appellees.
Before Jones, C.j., Bell, Musmanno, Jones Cohen, Bok and Mcbride, JJ.
OPINION BY MR. JUSTICE BOK
The issue here is whether distribution of a residuary estate should be per stirpes or per capita.
The crucial part of the will reads as follows: "FIFTEENTH: All the rest, residue and remainder of my estate,
I give, devise and bequeath unto the Union Trust Company of Pittsburgh, Pa., in trust nevertheless for the use and benefit of the brothers and sisters of my dear husband who survive me, namely, John, Elmer, Edith and Ethel, for and during their lifetime. After the death of any one of the above brothers or sisters, then I direct that his or her share or all of their shares at the death of all of them, go to the children of Edith Campbell Montgomery and William Campbell, son of Elmer Campbell, and Elizabeth McCool Salony, daughter of Marjorie Campbell McCool, deceased, and their heirs and assigns, share and share alike."
The testatrix had no family of her own. Her husband predeceased her, leaving five brothers and sisters: one of these, Marjorie Campbell McCool, died before the testatrix, leaving one child, Elizabeth McCool Salony. Of the other four, who survived the testatrix, two left no issue. Of the remaining two, Elmer left one child, William Campbell, and Edith left nine children, unnamed in the will. The four who survived testatrix received income under their life interests.
One of these, Elmer, died in 1956, and the trust consequently terminated as to one-fourth of the principal. It is this fund that is now before us. The auditing judge decreed distribution per stirpes and dissented when the court in banc sustained exceptions and decreed distribution ...