*1 therefore failed Appellant has jurisdiction. Court over his this Court has jurisdiction demonstrate been filed no motion to has appeal. Although dismiss for juris appeal we still dismiss this may appellee, none diction not be where parties conferred may Inc., v. Paper Mills, Commonwealth Yorktowne exists, may 419 Pa. A. 2d and this Court (1965), sua jurisdictional sponte. Barco, raise defect See v. Steel Crest 2d Homes, Inc. Inc., 221 (1966). jurisdiction properly
Since demonstration that with this is a prerequisite any adjudication Court on the has not since such been demonstrat- merits, appeal Supreme must be Cf. ed, dismissed. Rule 41.
Appeal dismissed.
Ehret Estate. *2 Argued 1967. Before C. Musman- J., May 3, Bell, JJ. O’Brien and no, Jones, Eagen, Roberts, Philip Brégy, him with Herbert and Mac- Bass, Coy, appellant. Evans é Lewis,
Harry guardian Polish, ad litem, appellee.
Opinion by Mr. Chief Justice November Bell, 1967: appeal by
This is an Provident National Bank, Orphans’ from the Trustee, Decree of the Court of Philadelphia County refusing to allow it interim com- pensation principal. stipulated*
In lieu evidence, facts were pursuant to submitted this Court as a statement to Supreme Court Rule 53. heartily approve practice We adop- and recommend its litigants.
tion of the Bar and other members leaving February died
Michael Ehret In Item probated. duly were and codicils which will (subject real estate he all his of his will gave Seventh two- thereof) in one-third his life estate to widow’s trustees, his to estate residuary personal his thirds years expiration twenty-one hold in trust until to trus- child. surviving his after the death of last his children to the income to directed pay tees were per stirpes dead children of his and to descendants upon date, at each distribution were living who his then to pay the trust expiration were These per stirpes. provisions living descendants, each Item in which testator gave subject Ninth, her his or appoint by children will power his her his or stirpal principal among share of income and *3 15, until July issue. the trust will continue Factually, the last sur- death of twenty-one after the years 1985— vivor of testator’s children. & Trust Title Bank
On December Land 12, 1919, ap (now Bank) Provident National was Company of It not pointed substituted was an executor trustee. will for a on the sale (except Ehret’s commission of has estate) compensa real never yet any on trus tion or commission for its services as principal filed tee. It a trustee’s which shows assets account, a corrected having carried account value of $746,550.- 81; at the time of the these had a market audit, assets value of The Bank claimed an interim $1,020,958.16. commission* the amount of $10,000.** in- not and did only, accurate, Compensation is more but “commission” almost by always lawyers, Judges, Legislatures, fiduciaries used and ac- countants. case, parties purposes agreed of the have ** Forthe this $10,000 claimed interim commission the substituted Bank, is, legally permissible, if rea fair and National Provident sonable. or or represent
elude any ob ad litem guardian services. The extraordinary commission, to the jected payment any ac this credit disallowed auditing Judge count. His was confirmed adjudication we en whereupon Bank, Provident National banc,* took appeal. repeat,
The sole a trus- issue before this Court is whether prior 1.945, tee under a created to testamentary which was an for its ordinary receive executor, may interim, as on principal. trustee an prior
With respect a trust created 1945, has law been thus established: Unless a testa- clearly tor corpo- or settlor provides (1) a dearly otherwise — rate an individual was both executor fiduciary who and trustee was under Act of 1864 entitled, Act of one commission 1917, infra, only for its ordinary services both and this capacities, upon was payable as the termination its services executor; P. April Act L. 1945, 189, specifically which repealed the Fiduciaries (a) §45 Act of June amended, (b) §§2, 5(1), and 6 of the 5(2) Act May P. L. P.S. permitted et which §3274, seq., (under certain specified circumstances) payment more than one commission on principal to a fiduciary who served as both executor and wills trusts created *4 prior cannot thereto, Constitutionally be retroactively applied; (3) such Constitutional limitations as well as the restrictions or statutory prohibitions contained Act the of 1864 and of 1917 have no application to (a) were fiduciaries who entitled even, before the termina- interim tion of the an trust, commission on principal * Orphans’ Judges of Philadelphia All the agree preferable payment rule would be that allow fair rea- and principal on interim commissions adopt sonable and would they authority practice if had do so. 588. to fidu or or extraordinary (b)
for unusual services, the termination before resign ciaries who or die Wil be: may the case as executorship trusteeship, , cases 82 2d 49, liamson Pa. 368 Estate 211 A. 2d Estate, Scott therein; cited’ com- disallowing The lower Court, supra, Williamson Estate, Pa., upon relied mission, gen- the broad Estate, and Scott 418 Pa., supra, of those cases. used in each language eral - this Court Estate, In Pa., supra, Williamson both executor that where the same fiduciary decided services ordinary and trustee and had for its received, at on principal a commission capacities, both there of its it could (1) termination executorship, commission an interim or an additional after receive capa on dual for its its ordinary principal or interim an additional but could receive city, or unusual extraordinary on principal commission April services. This Court further held Act- the Fiduciaries supra repealed §45 —-which prohib had supra Act of June (which section ited the same from on a commission fiduciary receiving executor principal as and another commission as trus not be tee) may applied a retroactively, — both executor and had who was as to the prior executor en of the Act of 1945 may an addi paid actment not be tional its trustee. Court said (pages -The : 350-351, 352-353) decided that except repeatedly have extraordi “We unusual nary trustee is be com circumstances. to. at termination pensated only or at the trustees connection ending therewith:* Bosler’s 29 A. Pa. 457, Thouron’s throughout, ours. Italics
589
1),
(No.
Estate
Pa.
37 A.
Penn-Gaskell’s
126,
861;
615,
346 Pa.
Pa.
A. 714; Snyder Estate,
208
57
342,
A. 2d
2d
Pa.
72
310,
31 A.
364
132; Kennedy Trust,
is
originally
commission on
124. No interim
however,
Where,
allowable under the
so declared.
law
labor
or unusual
services are
extraordinary
rendered,
com-
is
an immediate
allowance
entailed,
[an
Pa.
permissible:
Thouron’s
Estate,
mission]
Pa.
37 A.
Estate
861;
(No.
Penn-Gaskell’s
126,
1),
A.
D.
714;
Powers’
58 & C.
342,
L.
“The
the Act March
P.
Legislature
by
17,1864,
per-
all
provided:
‘That in
where
same
53,
cases,
executor,
son
under a
fulfill
shall,
the duties
will,
it shall not be
person
lawful
such
more
.’
receive,
charge,
than one commission.
. .
provision
was
Fidu-
re-enacted
section 45 of the
by
Act of
ciaries
June
P. L.
statutory
447. Such
7, 1917,
provision was enforced
Hill’s
appellate courts:
250 Pa.
Spark’s
Estate, 127
Superior Ct. 364, 193 A.
affirmed
which appellant operates contends upon retroactively trusts already operation.
“. . .
Act
of April 10, 1945, supra,
repealing
section 45 of the Fiduciaries
ofAct
1917, supra, which
prohibited the same individual
from
commis-
receiving
sions both as executor and trustee
may
be applied
retroactively.
Appellant,
corporate
ac-
fiduciary,
cepted this
1930 under the law as it
ex-
then
It
paid
isted.
full
(except
commission there-
after
it on
income it received and distrib-
acceptance
Such
fixed
uted).
the rights,
ex-
liabilities,
expectations
defenses
emptions,
of both life tenant
Their
and remaindermen.
rights were vested under
implied
is an
necessarily
what
contract.
Such rights
appellant
vested,
having
having been paid in full,
imposition
ret
under
*6
of additional
interpretation-
uncon
would
this statute
roactive
of
of
Amendment
Fourteenth
stitutional under the
Bank
National
Constitution: Farmers
United States
Company
390,
333 Pa.
Co. E.
Berks
R. Co.,
and Trust
v.
Life Insurance
A. 2d
Penn Mutual
94;
5
Willcox v.
362
521;
Estate,
357
55 A. 2d
Crawford
Pa.
Co.,
581,
67
. before testamentary the termination Scott’s §45 trust, supra, expressly repealed Act of June April (as amended), §1.of-the Act L.P. provided §2: that Act Moreover, ‘This act immediately upon effect take its final shall enactment.’ indisputable Act the 1945 did, else it is Whatever prohibition against repealed the 1917 it a re- his than ceiving more one commission executor trustee. the double capacity of nor . . nor the appellants appellee “. Neither the what as to Orphans’ exactly Judges agree thereof Williamson Estate parts and what decided, event any were dicta and should be followed, trust should be overruled. In Williamson re- had which was both executor company, its audit of ceived a commission on at filed account. The company executor’s thereafter a trustees’ account to obtain sought (in which prior test case) commissions principal, the termination of the trust. On this Court appeal, *7 (1) dissapproved and disallowed the interim commis- but sions, also held that Act of 1945 not could applied be to allow the same retroactively fiduciary additional on commissions its ordinary services.
“With respect to its second the Court said point, £. . (page 352) : . Act of April re- 1945, 10, supra, pealing section 45 of the Fiduciaries Act of su- which prohibited pra, same from individual receiv- ing commissions both as executor and trustee not may be applied retroactively. corporate fi- Appellant, accepted duciary, this trust in 1930 under the law as it then It paid existed. was in full (except for com- mission thereafter received it income it and distributed). Such acceptance fixed the rights, liabilities, exemptions, defenses and expectations of life both tenant and remainderman. . . .’ “Appellant contends that part this of the Court’s Opinion Williamson Estate was dictum* and should repudiated overruled. * “ views, supported by two There are each a number of deci Court, of as to this what sions constitutes dictum —one a broad a narrow or and the other view restrictive view: See: O’Neill v. Co., Metropolitan Ins. life 26 A. 2d Cassell’s William-
“Irrespective part of this whether it find not we dictum, son Estate .Opinion was that crystal clear as persuasive and It applicable. ac- corporate case, trustee that case, executor- at the cepted termination in the clearest ship applicable which the Act of 1917, ‘a compensa- to be imaginable stated was language full capa- tion in the double for his principal] [on this provision executor and city trustee’ was to in all cases where same apply person ful- trustee. duties executor and testamentary filled nullify To now to abrogate the Act allow- been had corporate what its eyes open, with paid had as full accepted for all its its dual ca- executor and make a pacity would be to mockery the law and of the of all rights parties, un- beneficiaries fiduciaries alike. This are we willing do.
“After en the Williamson the legislature decision, acted the Act of P. L. May 20 P.S. §3274 et 2.— seq. provides: That Act pertinently ‘Section appear Whenever either during shall the contirma nee* of a or at its that a has end, rendered services which he has been com fully pensated, the court jurisdiction his ac having over *8 him counts shall allow such or original additional out the compensation trust income or the trust prin- of 60; Almeida, A. 334 Pa. 6 2d Commonwealth v. 595; A. 2d York 362 Pa. 68 New Central & H. R.R. Co. v. Price, 330, 332; 865; Schuetz’s 159 Fed. 172 Moyer Byron, v. and 357 Pa. A. 2d Commonwealth 53 Drum, lengthy analysis Pa. For a 58 and dis- v. Commonwealth Trust, 96, 104-105, dictum, Pew see A. 2d of cussion 399.” * “ and both interim additional allow would both, subject, or or how of income (commissions) out exceptions provisions contained in and the Act.” ever, §4 the to him compensate or cipal necessary as both, may him. the services theretofore rendered “ all To apply: (1) 5.-—This act shall ‘Section To (2) fiduciary; services rendered by any heretofore hereto- fiduciary any all services rendered by hereafter rendered all (3) To services hereafter appointed; fore in trust hereto- fiduciary appointed hereafter any ren- fore To hereafter created; and all dered of a hereafter created. by any fiduciary “ United ‘Section 6.—If Constitution or prevents applica- States of this Commonwealth tion of more this act to services falling one the four act categories listed section 5, hereof, shall nevertheless the other apply services falling categories category.’
“We hold that Williamson controls directly Estate the instant and case that the 1953 Act on the stands same footing as the 1945 Act. the aforesaid [Under it cannot be facts, applied retroactively.] “In the light appears the com- hindsight, pensation which a corporate fiduciary received for all its services as its future executor, as trustee of a trust a period which covered of 20 years or more was inadequate unfair because the long duration of the trust and the increased greatly cost of operation. all parties in- However, concerned, cluding present corporate in- dividual fiduciaries and the beneficiaries, knowingly took this all they knew that the Statute (Act chance — 1917) clearly and unambiguously fixed the present and future all rights executors-trustees to a single on principal, which such fiduciaries re- accept agreed ceived compensation for full executor and their combined trustee fiduciary services, and future. If present past, compensation which fiduciaries as payment in full ordinary services their for all as executors and trustees *9 con the must not changed increased, can now be fiduciaries verse true —must the executor-trustee terminated which pre-1945 all trusts testamentary unexpected a short time because the sudden un death of tenant to the beneficiaries a life repay Moreover, earned had received! compensation they pres its prove a corporate fiduciary probably while can how, ago, ent costs as contrasted with its costs years serv prove at this late can such a what date, when 25-50 year trust, ice rendered during lengthy have persons the trust estate will many so who handled or be details?*” died unable to remember accurately An difference make the material will clear analysis between Estate and Williamson this case Scott only interim relates supra commission —an the time of payment. for
In not only had asked Williamson, but approval an had asked also for op to make an as charge percentage annual based that a posed Pennsylvania to the rule established depends trustee’s the character and compensation upon responsibility extent incurred labor, re results obtained. Moreover, having trustee, ceived services as executor and his future
his for a retroactive asking repeal The double commission rule.** statutorily prohibited and all on the Court refused each of this grounds double commission rule would bene repeal violate Constitutionally vested rights. ficiaries’ However, Estate did not decide or preclude Williamson as Un the retroactive constitutional the in modification of rule, terim commission since this does not involve addi- * “ mergers many place bank which have taken will often these difficulties.” increase ** AprU 10, 1945, P. L. Act of Under *10 for payment. the time compensation merely tional but ex- various approved to and the Court referred Indeed, by engrafted been over the had ceptions years which interim and the commission the Courts on the double compen- allowance such as (1) rules, the with sation at the end of a trustee’s connection where (2) and continues) trust the trust (even though the before rendered services have been extraordinary of the expiration trust. there
In the issue involved whether Seott, was only of the repeal could be retroactive Constitutionally pre-1953 double commission rule in (compensation) the not there- issue commissions was trusts; in involved because the claim made at the trustee’s was termination Court reiterated the trust. holding Williamson the Act which re- double not Constitu- pealed the commission could rule, applied nor tionally could the Act retroactively, which mere and repeal went affirmative- beyond ly allowed the of double on payment prin- commissions cipal. We interim commissions not in- repeat, were volved Scott Estate. corporate
The instant where the case, was never an executor and has never received com any pensation or on principal for its services (1) clearly distinguishable its facts from Williamson Estate from and Scott Estate, supra,* and the broad language these cases must be to the limited facts therein, (3) there is no statute prohibits which directly specifically an interim ordinary services under here On present. contrary, 1953 Act facts for the allowance of an provided interim commission. these recent Even before Acts of 1945 and 1953, the Coulter And from 108 A. 2d which by parties referred or was Court below. all practical rule made for
statutory prohibitory was of Court. purposes However, and effects a rule general this rule was limited Or modified general early before termination of the trust, permit, of an interim commission on payment services in an individual (a) the case of resigned prior who died to the termination (b) who a trustee was both extraordinary executor and trustee for unusual or compare Pa., services. See Thouron’s Estate, (No. supra Pa., Penn-Gaskett’s Estate (1897); 1), Conner’s supra Dist. 107 (1904); (O.C. *11 D. per Powers’ 58 Pa. J.); Estate, Philadelphia, Gest, Mc. per J.); & C. 379 (O.C. Philadelphia, Hunter, 307 Pa. Atl. Bosler’s Caskey’s Estate, 707; 160 Atl. 161 Pa. Estate, 57; Snyder Estate, 457, Ct. Superior 31 A. 2d 32 Pa. 132; Estate, 615, Mylin’s it has It is a matter common knowledge for practice and well-settled custom and long been not to allow interim commissions Orphans’ Courts a even principal* by had not a com where the previously practice and this had become sub principal, mission rule of law. silentio a pointedly
Sir stated: “Reason is Edward Coke I life of the to which add: law,” “Where reason Respect Justice and im- both the Law are faileth, periled.” Court has stated, particularly recent years,** for a the reason judicially created rule or
that where exists, no modern longer practice circumstances practice might greatly a that such the reason would or For deplete trust. ** examples, Flagiello outstanding Pennsylvania see v. For Hos Trust, A. 2d Catherwood pital, 405 Pa. 2d 86. plus equity or abro- and Justice demand its alteration gation, changed it can and or abandoned should property personal rights cases no vested where one’s abrogated that, interests will be or affected. We add provision controlling absent a statute or a a testator beneficiary right a there is no vested a settlor, payment time of a commission. pres (including Several Justices of Court writer) Orphans’ Legislature ent and the and the Philadelphia pointed have from out time to time the unfairness of this harsh rule and their desire see speak Realistically it eliminated or further modified. ing, knowledge it is a matter that financial of common changed greatly and modern conditions have so since supra, the Act of 1864 and the Act of that we should limit Williamson and Scott Estate, supra, Coulter our to their and under facts, King’s powers powers, granted Bench and under the May to us the Act of L. 12 P.S. P. 20, 1891,* payment should if fair §1164, allow, earned, and reasonable interim commission on to a (non-executor) long-term trustee of Without trust. policy cope such a rule to modern with conditions and both “make ends how otherwise meet,” these days corporate can a trustee continue to a fi exist as *12 duciary, why otherwise would an individual trus company, accept or indeed a bank or tee, ever a long-term trust?** equally by (1)
Decree costs to be borne reversed, corporate (2) principal trustee, of the trust estate. * Supreme power Court shall 2. The have in all cases “Section modify reverse, affirm, judgment, amend or a order or to decree from, judgment, appealed enter such and to order or decree in may proper just. Supreme deem . . .” case ** approval to be considered an is of annual decision principal to a for either his or ordi- its
commissions extraordinary services. nary or in the result. Eagen concurs
Mr. Justice considera- in the part Mr. took no Justice Cohen tion or decision of this case. Opinion
Concurring Mr. Justice Roberts: holdings of our be the wisdom may Whatever * unjusti in an except perhaps Williamson Scott and ques control way broad no fiably they reading, retroactivity problem No commissions. tion of interim only relate interim commissions presented is here the bene the time of a matter which payment, to interest. have no vested constitutionally ficiaries majority I to add one word of caution to wish only Interim commissions should be allowed opinion. of the rendered on the basis the worth ren- total of the services not exceed the value should pe- inception from the to the conclusion dered “The Constitution- trusteeship. riod of See Comment, Compensation of Retroactive Trustee Statutes ality : L. U. Pa. Rev. Pennsylvania,” an com- principal “The purpose awarding compensate is to the trustee for his mission termi- practice more than was the under the promptly espe- commission rule. This is change nal to the individual who will advantageous cially more willing knowing assume his duties certainly than reap that rather his will the fruits he, estate, labor. In the case of the retroactive interim prin- his cipal statute, has no remainderman complain. trustee is standing entitled and the paid fact clearly represent departure great decisions from Our tlie Scott, authority. (2d weight 1956) §242, See Trusts Ed. at California, Michigan, Jersey (citing from cases New and New Principal Act, King, York) ; and Income §5: “Uniform Constitu- Application,” tionality Quarterly Retroactive 1960 Wash. of Its U. 339, 346-47.
more than one installment would not seem affect award,. the total amount Nor should the slight reduction of income from the award of resulting early a principal commission defeat reasonable any expecta- tions income since the amount of beneficiary, income commissions Pennsylvania always has been at the discretion of the court subject to variation.” (Emphasis supplied.)
Mr. Justice joins Jones opinion. this concurring Washington, Commonwealth ex Appellant, rel. v. Maroney.