205 A.2d 861

Abele Estate.

Supreme Court of Pennsylvania.November 16, 1964.
January 5, 1965.

Wills — Terms — Construction — Testamentary trust — Gift of remainder — Gift to nephews and nieces — Intention of testator.

Where testator created a trust and provided that upon the death of the survivor of his brothers and sisters to pay over the principal of his residuary estate “unto such of the children and issue of deceased children of my said brothers and sisters as may be living at the time fixed for the said distribution, equally, absolutely, per stirpes.” it wa Held that testator intended a distribution of principal per capita among the indicated nephews and nieces living at the termination of the trust and a per stirpes distribution to the issue of deceased nephews and nieces.

Before BELL, C. J., MUSMANNO, JONES, COHEN, EAGEN, O’BRIEN and ROBERTS, JJ.

Appeals, Nos. 343 and 349, Jan. T., 1964, from decree of Orphans’ Court of Philadelphia County, No.

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3286 of 1941, in re estate of Charles S. Abele, deceased. Decree affirmed.

Same case in court below: 34 Pa. D. C.2d 273.

Audit of account. Before SHOYER, J.

Account confirmed nisi, exceptions to adjudication dismissed and final decree entered, before KLEIN, P. J., BOLGER, LEFEVER, SAYLOR, SHOYER and BURKE, JJ., opinion by KLEIN, P. J. Exceptants appealed.

Otis W. Erisman, with him Frank F. Truscott, and Truscott, Kline, O’Neill Howson, for appellants.

C. Leo Sutton, with him William J. Henrich, Jr., an Dilworth, Paxson, Kalish, Kohn Dilks, for appellants.

Julian Abele Cook, Jr., with him Hardy Williams, for appellees.

OPINION PER CURIAM, January 5, 1965:

The controlling issue is whether the testamentary trust provision here in question mandates per capita or per stirpes distribution of corpus among testator’s nieces and nephews and the issue of deceased nephews and nieces.

The pertinent provision of the will provides: “FOURTH: . . . And upon the death of the survivor of my said brothers and sisters to transfer, assign and pay over the principal of my said residuary estate unto such of the children and issue of deceased children of my said brothers and sisters as may be living at the time fixed for the said distribution, equally, absolutely, per stirpes.”

The Orphans’ Court of Philadelphia County, in a sound and comprehensive adjudication, determined that testator directed the distribution of principal per capita among the indicated nephews and nieces living

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at the termination of the trust, and that testator directed per stirpes distribution to the issue of deceased nephews and nieces.

We have carefully reviewed the record and the governing authorities and we are entirely satisfied that the court below correctly adjudicated the issues presented. We also share that court’s view that the present controversy is governed by the principles of England Estate, 414 Pa. 115, 200 A.2d 897 (1964).

The unanimous determination of the six judges of the Orphans’ Court of Philadelphia County is affirmed.

Decree affirmed. Each party to pay own costs.