32 A.2d 20 | Pa. | 1943
Testator directed that the residue of his estate "be invested in a Trust Fund in good sound securities and the *178 interest thereof be paid [etc.] . . ." Girard Trust Company, the trustee, invested $6,000 in a portion of a $2,000,000 bond and mortgage given to it as trustee for sundry trusts by a New Jersey corporation. The mortgage covered the Hotel Dennis in Atlantic City. To the trustee's account crediting itself with this investment, the residuary legatees filed exceptions, which were dismissed by the auditing judge. An evenly divided court en banc affirmed, and these appeals followed.
The mortgage being upon real estate outside the Commonwealth, it was concededly not within the class of investments which section 41(a) of the Fiduciaries Act of June 7, 1917, P. L. 447, as amended, makes "legal" for trust purposes. The sole question then for our determination is whether the terms of the will authorized the trustee to purchase other than legal securities, appellants admitting that the investment was proper if non-legals were permitted.
It is well settled that the power to invest in non-legals must not rest upon equivocal words or upon conjecture, but must clearly appear. The presumption is against the existence of such power, and all doubts are resolved against the party asserting it: Taylor's Estate,
The learned auditing judge was also of the opinion that this investment was improper and that the trustee should be surcharged, but concluded that prior decisions had been modified or overruled in Greenawalt's Estate,
We conclude that by the use of the words "good sound securities" testator clearly intended investments in legal securities, and that since the trustee committed a breach of its fiduciary duty in making the questioned investment, it must restore in cash the amount improperly used in the purchase of the New Jersey mortgage participation.
Decree reversed and record remitted to the court below for the entry of a decree consonant with this opinion.