180 Pa. Super. 243 | Pa. Super. Ct. | 1956
Opinion by
The recital of the facts in the preceding opinion will supply the background for this appeal also.
When six of the children of Max Schulz deeded their respective interests in that decedent’s real estate to Edward Schulz for a consideration of $12,000 he understood that he had acquired “an absolute fee simple title in the premises” in accordance with a recital in the deed to that effect. Frank Schulz one of the six who signed the deed had only a life estate in the realty under the will; his children were the remaindermen. Edward Schulz set aside a one-seventh part of the purchase
Under the will of the testator as construed by the Supreme Court in Schulz Estate, supra, the remainder-men in the testamentary trust were “relegated to the will of testator to secure their shares in the uncon
Since under the holding in Schulz Estate, supra, there was no sale of the testator’s real estate, and the interests of the remaindermen here involved did not pass by the deed, Edward the executor did not hold the fund in trust for the remaindermen as he thought he did. In fact and in law it was actually his own money and the right of his personal representative to the fund was not defeated by Edward’s mistaken belief that he Avas bound to hold it for the remaindermen under the testamentary trust. Spangler’s Appeal, 24 Pa. 424. A trust can be rescinded because of a material mistake in its creation. Restatement, Trusts, §333, comment (c). Cf. Irish v. Irish, 361 Pa. 410, 65 A. 2d 345. The truism given expression in Spangler’s Appeal, supra, that “the cestui que trust is entitled to a full account of all that is his, and he cannot claim anything more” is decisive of the question here. All that appellant is entitled to will be to share in the proceeds when the real estate is sold.
Decree affirmed at appellant’s costs.