Lane

This is an appeal by life income beneficiary and trustee from an order denying his petition for distribution to him, as income, of a portion of the proceeds of a fire insurance policy upon the loss by fire of a certain theater building which comprised a part of the corpus of the trust estate.

In the inventory of the estate this property was appraised at $30,000. Subsequently, and before the fire, it was depreciated to $19,921.28. The insurer paid the trustees $73,-334.29. The appellant claims that the difference between the last two sums, $53,413.01, is a capital gain which is income and should be distributed to them as the beneficiaries who are entitled to receive the income of the trust as provided by the will.

In denying the petition, the trial court found that the allegations of the petition “are not true in that monies realized from the payment of insurance on the burning and destruction of the Niles Theatre property . . . over and above the original inventory value of said property and the depreciated value thereof, was not, in fact, income, and therefore not distributable to the life income beneficiaries of the Trust Estate . . . and that such monies so paid to their…