dissenting. — Can principal presently recoup what is now discovered to be excess net income distributed to life tenants and accounted for and approved in a prior adjudication more than five years ago — before the adoption of the Nirdlinger Estate principle of apportionment? In affirmation of my adjudication certain points should be emphasized to strengthen its conclusion.
The five-year rule so rigorously employed in Stetson’s Estate, 305 Pa. 62, and Elkins’ Estate, 325 Pa. 373, and related cases, and which was relied upon in the adjudication, is a statute of repose. It applies and makes final all matters, whether of law or of fact and whether correctly or incorrectly decided, in the adjudication and thereafter confirmed absolutely.
The disputed items in the 1936 accounting in the instant estate were matters of distribution to the life tenants. They were so set up in the account and approved by the adjudication albeit under a different theory of law than is now applied — the doctrine of hotchpot. All income debits and credits alike from whatever source were accounted for collectively. No segregation was made of income pertaining to property in the course of salvage. It must follow, therefore, that the adjudication was in error as a matter of law when, in accordance with the requests of the parties, it approved the account not merely as to items of charge and discharge, but also in distribution. However much it *458was in error, no fraud having been alleged, it is now too late to correct the error. It is to be understood that in using the word “distribution” it is intended to convey the idea of finality — without reservation — such as subject to possible set-off against future income.
We cannot now pass upon the equities that existed in 1936 and which persuaded the parties to approve the account. It is possible that in that accounting other considerations might have been brought to the attention of the parties which would have balanced out this present claim. Among other things, I refer to possible loss of income by the life tenants in other foreclosed real estate where the salvage operation had been completed, but due to the fact that the Nirdlinger decision had not been handed down no claim was made by the life tenants. To extract from the previous accounting only the stated debits to income without obtaining a complete picture of the estate at the time would be grossly unjust. In short, the fair and just way to revive consideration of this matter is by review. Since this latter procedure is concededly irregular because of the application of the five-year rule (Fiduciaries Act of June 7, 1917, P. L. 447, sec. 48), consideration of the entries in dispute should likewise be declared irregular.
In re Scott’s Trust, 40 D. & C. 227, and Romberger’s Estate, 39 D. & C. 604, cited in the majority opinion, are clearly distinguishable. In the former, the five-year rule is not involved; in the latter, requests for allocations of income were declared premature because the salvage period was not concluded and there was no fund, therefore, before the court for distribution.
The adjudication is sound not only as a matter of law but as one of policy. It is a step toward the simplification of a principle of law which has become burdensome at times in the ramifications of its application.
The exceptions should, therefore, be dismissed.