dissenting. — The testator died in 1918, leaving a will, by which he bequeathed certain annuities and the residue of the total annual net income to certain life tenants. The trust is to continue until the death of the survivor *679of the life tenants, and the testator expressly stated that it was his intention to provide for distribution of the whole income of the estate until arrival of the period for the final distribution.
No account was filed by the trustees from 1920 until the present account was filed in 1932, and we may observe that in this case, as in many similar cases, much confusion and litigation might have been avoided had the trustees availed themselves of their statutory privilege of filing accounts more frequently.
During the period embraced by this account, the trustees charged against income numerous payments which should have been charged to principal, and it was stipulated by the parties that $15,807.65 should be transferred from income account to principal account. As a result, the income account showed an undistributed balance which included said sum, being improper credits in various amounts charged during the years 1920 to 1932. The auditing judge, in the schedule of distribution approved by him, reserved the income balance of $21,154.34, which included, as above stated, the amount of $15,807.65 so transferred, in order to provide a reserve fund, against the deficit in income for 1932 and future maintenance charges on the real estate. The life tenants in their exceptions claim that this was error, on the ground that this reservation is not authorized by the will nor justified by the decisions of the Supreme Court.
So far as the will' is concerned, this position is clearly well taken. Indeed, the testator expressly contemplated and intended that the beneficiaries under his will should receive the net income remaining from year to year after the payment of the annuities, and so directed in several clauses of paragraph 9 of the will. The trustees, according to the will, should have distributed the net income as it accrued from the year 1920 and thereafter to the beneficiaries, whose income under the will was therefore improperly withheld.
The auditing judge, however, held that the corpus of the trust estate is in considerable danger by reason of unpaid taxes and other charges, and that the retention of the fund in question and its application to the payment of these taxes and charges rested within the exercise of his discretion as auditing judge. Sinnott’s Estate, 310 Pa. 463, was relied upon as supporting this view, and our decision upon the present exceptions depends to a great extent upon the scope and authority of that case.
The will in Sinnott’s Estate directed monthly payment of income to the beneficiaries according to certain powers vested in the trustees, and forbade the accumulation of income. The principal of the estate, according to the adjudication, amounted to $1,500,000, and the balance of current income was $16,844.62, which the court authorized the trustees to withhold in aid of the judicious management of the trust, saying: “In view of the size of this estate, the income therefrom, and the economic situation as it has existed for the past three years, we do not now look upon the accumulation of income complained of by the appellant as an unreasonable exercise of their power. If they later manifest an intention to maintain permanent accumulations of income beyond the apparent necessities of the situation, the charge of an abuse of discretion may prove to be well founded.”
Sinnott’s Estate followed the prior cases of Eberly’s Appeal, 110 Pa. 95, and Howell’s Estate, 180 Pa. 515. In Eberly’s Appeal, about $5,000 of income had accumulated in the hands of the trustee, who was authorized to retain it in order to assure the regular payment of an amount bequeathed by the testator to his improvident son. Howell’s Estate was somewhat similar, as the protection of an annuity was in question and the surplus income reserved as “a wise provision to meet deficiencies during the life of the widow.” We applied these cases in Dunn’s Estate, 26 Dist. R. 656. Sinnott’s Estate perhaps went some*680what further, but in our opinion it is clearly distinguishable from the present case in this important respect — in Sinnott’s Estate there was the establishment of a reserve for contingenies out of current surplus income, while here the fund reserved consists, at least to a large extent, of income which should have been distributed to the life tenants in years gone by, which rightly belonged and still belongs to them. It cannot be regarded as “surplus income”.
The fact that the life tenants did not take legal proceedings to enforce the payment of the money due to them under the plain provisions of the will does not operate as a waiver of their rights. The responsibility for proper administration of the estate rested upon the trustees, and it was their duty to pay over the income to the persons entitled to it. The trustees might have filed an account as soon as any question arose concerning distribution.
In my opinion, the exceptions should be sustained, and the account and the schedule of distribution should be recommitted to the auditing judge for amendment of the schedule and further proceedings in accordance with the views herein expressed.
Lamorelle, P. J., concurs in this dissenting opinion.