Appeal from decree of Orphans' Court of Lancaster County, No. 85 of 1959, in re estate of Charles H. Demitz, also known as Charles Henry Demitz, deceased.
Mark R. Eaby, Jr., with him Eaby and Eaby, for appellant.
Harris C. Arnold, with him Harris C. Arnold, Jr., and Arnold, Bricker, Beyer & Barnes, for appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell.
The guardian of testator's incompetent wife and the administratrix of her estate appeal from a decree of the Orphans' Court.*fn* The Court (a) confirmed the
Trustee's account and (b) ordered distribution of the trust principal to testator's two children and (c) dismissed exceptions to an adjudication which had denied the joint*fn** claim of the guardian and the administratrix against Demitz' testamentary trust.
Charles H. Demitz died January 22, 1959, leaving a will in which he gave his entire estate to the Conestoga National Bank of Lancaster in trust with directions to "keep the trust invested and use the income and so much of the principal as it deems reasonable or proper in its discretion**fn** for the care and comfort of my wife, Jeannette Y. Demitz, during her life. And after her death I direct the trustee to pay her reasonable funeral expenses and I give all the funds thus remaining, including any accrued or accumulated income, in equal shares to my two children Virginia S. Paige . . . and my son, Robert S. Demitz . . . ."
On April 7, 1959, a guardian was appointed for the estate of Jeannette. Shortly thereafter Demitz' trustee notified Jeannette's guardian that the trustee, in the exercise of the discretion given it in Demitz' will, would not invade the trust principal for the care and comfort of Jeannette, unless and until the funds of the widow which were in the possession of the guardian became exhausted.
On January 22, 1960, the guardian of testator's incompetent wife filed an election to take under his will. The funds remaining in testator's trust estate after payment of Jeannette's funeral expenses totaled $9,991.
Testator's wife, Jeannette, was an inmate of the Harrisburg State Hospital on January 17, 1959, the date of testator's will, and at testator's death on January 22, 1959, and until her death on December 24, 1962. She had an estate of over $18,000, made up of (1) approximately $9,600 Series E bonds which had been purchased by her husband and registered in the name of herself or her husband, with right of survivorship, and (2) an insurance policy in the amount of approximately $2,500, which his employer had taken out on Demitz' life and in which she was the named beneficiary, and (3) Social Security payments of over $4,000 arising out of her husband's ...