Appeals from decree of Orphans' Court of Allegheny County, No. 4015 of 1958, in re estate of Stella S. Linn, deceased.
Frank W. Ittel, with him Reed, Smith, Shaw & McClay, for remaindermen.
Walter J. Wagner, for executors of deceased executor.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Jones.
Stella S. Linn (decedent) died in 1958 leaving a will dated February 27, 1942.
As presently pertinent, that will provided: "Second: I give, devise and bequeath all my estate, real, personal and mixed, not required for the payment of my debts aforesaid, to my husband, Jacob C. Linn, if he shall survive me, to take, hold, control and use the same for and during the term of his natural life, and during said term to use and expend all of the income from said estate as he may desire, and further to use, convert and expend so much of the principal of said estate as he may find necessary in order to provide him a comfortable and satisfactory support. . . . Fifth: Upon the decease of my said husband and after payment of the Five Thousand ($5,000.00) Dollars, aforesaid, I give, devise and bequeath my estate, real, personal and mixed, which may then remain, to the children of my deceased brother, Albert Schinneller, namely, George C. Schinneller, Jean L. Schinneller and Marjorie D. Schinneller, to be divided among them share and share alike."*fn1
On December 30, 1959, after audit of the account, the balance of testatrix's estate was awarded to her husband, Jacob C. Linn (life tenant). The relevant portion of the decree of distribution awarded testatrix's
estate to the life tenant "for and during the term of his natural life, with power to consume, and at his death and after payment of $5,000 as provided in Paragraph Fourth of decedent's will, remainder" (to certain persons named in the will). The balance of the estate so awarded consisted of marketable securities and cash totaling, $81,351.18.
The life tenant died in 1964 leaving a will and codicil dated October 12, 1960. The pertinent portion of the codicil provides as follows: "Sixth: I hereby nominate, constitute and appoint my brother, Carl Linn, and my good friend, Fred M. Amman, Sr., or the survivor or successor of them in the capacity of Executors of my Last Will and Testament dated October 12th, 1960, to make the necessary accounting after the date of my death in accordance with the provisions in the last Will and Testament of my wife, Stella S. Linn, . . . and under which I, Jacob C. Linn, was designated Executor, with said Will being silent as to whom shall make final distribution of the Stella S. Linn Estate after termination of my life interest therein."
The life tenant's surviving executor (appellant in No. 112 March Term 1969) filed an account but did not include therein the assets which remained of testatrix's estate at the time of the life tenant's death. The remaindermen named in testatrix's will petitioned the Orphans' Court of Allegheny County to require the executor of the life tenant's estate to account for that which remained of testatrix's estate at the time of the life tenant's death and the court required such an accounting. Upon filing of that account, the remaindermen under testatrix's will excepted upon the ...