Appeals, Nos. 310, 311 and 312 | Pa. | Mar 27, 1899
Opinion by
The decrees from which these appeals are taken are separate, but they were entered in the same estate and relate to the same subject, the management of a trust, and the appeals may be considered together. The first appeal is from a decree dismissing the petition of the appellants for the removal of Henry C. Russell as trustee of the estate of Lewis Vastine; the second is from a decree dismissing the petition of the same parties for a review of the third account of the trustee, and the third is from a decree confirming the adjudication of the fourth account of the trustee.
By the will of Lewis Vastine, who died in 1876, a part of his estate was left in trust, the income to be accumulated until his grandson, Lewis V. Iialberstadt, should attain the age of twenty-three, when he was to receive one half of the trust fund and its accumulations. The remaining half was to be held in trust and the income thereof to be paid to his grandson for life, with remainder to his children. The trustee was invested with the fullest power in regard to the management of the estate and the investment and reinvestment of moneys which should come into his possession.
The trustee appointed by the will refused to act, and in 1878 Henry C. Russell was appointed trustee. He received from the executor 830,821.54, all the income of which was invested until 1892 when, Lewis V. Iialberstadt having reached the age of twenty-three, one half of the whole estate then in the hands
On April 5, 1897, Lewis Y. Halberstadt assigned all of his interest in the estate to Walter G. Roland to secure an indebtedness due him.
The proceedings to remove the trustee and to review the third account were instituted by Roland, and at the audit of the fourth account he sought to surcharge the trustee. Practically the whole contest related to the commissions charged by the trustee. There was no allegation of fraud, of incompetency or of mismanagement, except in the failure promptly to collect interest on some mortgages. The trustee had not kept, as he should have done, a separate bank account, and in the accounts filed there had been a blending of principal and income; but every dollar received had been accounted for, and during the whole administration of the trust extending over a period of nineteen years there had been no loss of principal or income.
The petition for the removal of the trustee was treated by the court as having been filed under the first section'of the Act of June 3, 1893, P. L. 273, and in considering it the inquiry was limited to the causes for removal named in that section; and all other matters alleged in the petition were left to be considered upon the audit of the fourth account, to which exceptions had been filed. It is now argued that the court erred in so restricting its inquiry, and that grounds for removal not mentioned in the act should have been considered. As no ground for the removal of the trustee under any act of assembly was shown, this objection is wholly without force; but the court was right in treating the petition as having been filed under the act of 1893. The language of the petition followed closely that of the act; it was preceded by a preliminary reqaest for a detailed statement of the nature and character of the securities, as required by the act, and it contains an averment that the trust funds are in part “ badly invested, so as to be likely to result in a loss to the trust,” the exact words of the act. But it is conclusive of the subject that the counsel
The third account was prepared November 18, 1892, three days after Lewis Y. Halberstadt had reached the age of twenty-three and had become entitled to one half of the estate absolutely and to the income of the other half for life. It was given to him by the trustee for examination, and a copy was furnished him for his own use. He retained the account some days, and returned it with a declaration of his approval indorsed thereon, in' which it was stated that he had examined and approved the account. The account was filed December 6, 1892, and confirmed absolutely May 4,1893. At that time Lewis 1". Halberstadt was twenty-three years old, the secretary of a manufacturing company, familiar with business matters, and fully competent to understand the account and to take measures for the protection of his rights. Nothing was concealed from him. All the charges now objected to appeared on the face of the account or on those of prior accounts to which this one referred. He received the principal due him and was paid the income annually for five years thereafter without objection. The first objection made was made by the assignee of his interest, with whom he joined, and the only ground of the objections was the charge of excessive commissions. In Priestly’s Estate, 127 Pa. 420" court="Pa." date_filed="1889-06-28" href="https://app.midpage.ai/document/appeal-of-priestley-6239466?utm_source=webapp" opinion_id="6239466">127 Pa. 420, where a review was asked because a trustee had charged commissions on moneys which had not come into his possession at all, it was said: “ This was an objection which could as well have been taken when the account was filed: .... The act of 1840 was never intended to open accounts for retrial of questions of fact, years after they had been passed upon by a competent tribunal.”
Upon the audit of the fourth account the court allowed the trustee as compensation for his services $>200 per year. This allowance was made after a full investigation of all the accounts and of the conduct of the trustee from the time of his appointment, and is based on the nature of his services and the manner in which they were performed. While this allowance is in excess of the usual commission of five per cent of the income received, it does not appear under the circumstances of this case, which are exceptional, to exceed the limits of just compensation. The principal of the trust fund, which now amounts to
The decrees are affirmed at the cost of the appellants.