Doherty's Estate

Ladner,

concurring. — I agree in the result but do not agree with either the majority opinion nor the auditing judge in the statement that where, upon completion of a salvage operation and application of the Nirdlinger formula (331 Pa. 135), the amount of net rents paid a life tenant is shown to be in excess of income share of the salvage proceeds, such excess can be recouped out of the “other income”. Such ruling seems to me to be inconsistent with the doctrine favoring the life tenant, as first laid down in the Nirdlinger case above mentioned which, at page 139, directs “that net rents, based upon the return from each individual property, shall be distributed to life tenants”.

What Judge Stearne, whose adjudication was approved by a majority of this court when the above *457Nirdlinger case was before us (34 D. & C. 36, 37), said with regard to the right to recoup such excess from other income followed logically his ruling that all investments should be treated as a whole and not separately as the Supreme Court later ruled.

I shall refrain from further discussion of the matter because no exception was taken to the auditing judge’s ruling in this regard, hence what has been said on the subject in the majority opinion is obiter dictum.