¶1dissenting. — This case aptly illustrates why it is unjust to a life tenant to compel recoupment from her other income instead of limiting the recoupment to the share apportionable under the Nirdlinger Estate formula. Here the salvage operations involved were protracted as long as 11 years. The poor market and low prices were no doubt caused by the depression but that merely emphasises the fact that the reason for the long retention was the hope of ultimate restoration of principal. In other words, it was for the benefit of the remaindermen that the salvage operations were protracted. Why should not then principal bear the loss? If life tenants are compelled to restore the so-called excess of income over current return out of their other income, they would be far better off if the trustees were compelled to sell foreclosed properties at once and to invest the proceeds thereof.
¶2I am decidedly not in accord with the majority and I feel strongly the correct principle is that recoupment *13against a life tenant must be limited to the share of proceeds to which the life tenant would be entitled at the completion of the salvage operation. Any other rule inflicts an unjustifiable hardship on the first and usually the prime object of the testator’s bounty. In my concurring opinion in McDowell’s Estate, 52 D. & C. 258, I have set forth the reason and authority for my conclusion, and therefore need not repeat here what I there said. I merely add that Judge Sinkler came to the same conclusion in Bassett’s Estate, July term, 1908, no. 156, in his adjudication of October 19, 1942, to which no exceptions were filed.
¶3I would sustain the exceptions.