185 A. 768 | Pa. | 1936
Argued May 13, 1936.
The Act of June 7, 1917, P. L. 447, Sec. 53, empowers the Orphans' Court to remove a fiduciary over whom it exercises jurisdiction upon cause shown. The removal of a trustee is a drastic action, which should only be taken when the estate is actually endangered and intervention is necessary to save trust property. In Neafie's Estate,
The effort of the testamentary guardian of the two minor children of this testator, to remove appellee as testamentary trustee failed. The reasons assigned for removal were that he withheld income, interfered with the control of the children, neglected to keep appellant's residence in repair, refused to comply with the directions of the will, and engendered an irreconcilable hostility *360 between himself and appellant. These, appellant says, make him unfit to continue in his fiduciary capacity.
One of the children, testator's son, Curtis, has been absent for five years from the home of the guardian. All parties are ignorant of his whereabouts. Under these circumstances appellee has refused to pay the full income, believing, in good faith, as the master found, that it is his duty to preserve for the boy his proportionate share of the income. He further asserts that upwards of $2,000 of income should be retained for future contingencies in the management of the real property of the estate, such as demands for repairs, taxes, et cetera. Appellant insists that appellee has no discretion as to payment of income, and that it must be turned over, as it accrues, to the guardian who alone has power to determine the requirements of the children. He states that the retention of income amounts to unlawful accumulation. The master, however, found that the retention of the money was warranted and done for the best interests of the estate. This finding, supported by sufficient evidence and approved by the court below, will not be disturbed by this court on appeal. See McEvoy v. Grant,
The trustee is not violating the established policy of this Commonwealth against accumulations by so acting. This term is applied only to income retained for the deliberate purpose of adding it to corpus. Where income is reserved as a separate fund, to meet exigencies which might subsequently arise, and which might otherwise necessitate a depletion of the principal, there is no unlawful accumulation. Such an income reserve is, on the *361
contrary, in the interest of judicious management. Howell'sEstate,
The second objection, that appellee has created a strong hostility between himself and appellant, requiring his removal, is without merit. Active antagonism of the beneficiaries of an estate toward a fiduciary, while undesirable, is not sufficient to compel the courts to order the latter's removal, unless provoked by him and likely to jeopardize the estate.Neafie's Estate, supra; Hurley's Estate,
Here the hostility was not provoked by any unreasonable or wrongful conduct of appellee. Its sources, as the master found, are three. First, appellee, who was a friend of the decedent, has always been regarded by appellant, testator's father, as an interloper interfering in the family affairs. Second, appellee displayed a sincere and kindly interest in the welfare and education of the boy Curtis, much to the guardian's resentment. The court below strongly commended appellee's conduct. The third cause, the withholding of funds, has been discussed above.
On the charge that the fiduciary has mismanaged the estate, the master found, and the court below approved, *362 that he had displayed a high degree of business acumen and skill in preserving the corpus intact through nineteen years of violent economic fluctuation and distress, and had done everything possible to protect the interest of the beneficiaries. The assignments not discussed are without merit. The court below did not err in refusing to remove appellee as testamentary trustee.
Decree affirmed at appellant's cost.
