12 A.2d 350 | Pa. | 1940
Following the adjudication in December, 1937, of an interim accounting filed by the surviving trustees under *122 the will of Godfrey Rebmann, who died March 20, 1897, the balance of principal "composed as set forth in the account" was awarded to appellant Harry F. Rebmann, as continuing trustee, and appellants Loraine I. Van Dusen and the Tradesmen's National Bank Trust Co., as substituted trustees.
Appellants filed a petition in the orphans' court setting forth that among the assets of the trust estate awarded them they received securities which were not at the time of purchase by the original or surviving trustees and are not now legal investments for trust funds and other securities which were legal investments at the time of purchase but have since ceased to be so by reason of changes in the law or by reason of defaults or inadequate property valuations; that appellants are of the opinion that if under the law they have no duty to sell these securities as promptly as reasonably can be done they should be retained, but if they are duty bound to sell as promptly as can be done without sacrificing intrinsic values the securities should be sold; and that appellants are advised by counsel that their duty in this respect is not clear in view of the provisions of sections 41(a) 19(c) and 49(e) 2 of the Fiduciaries Act, as amended by the Act of May 28, 1937, P. L. 1037. They asked the court to decree that "The said trustees are not under a duty to dispose of said investments as promptly as reasonably can be done without a sacrifice, but are merely under a duty to exercise the due care and prudence that an ordinary man would exercise in determining from time to time whether to hold or sell any part or the whole of any one or more of the said investments in the same manner as if said investments were legal for the investment of trust funds under the law of the Commonwealth of Pennsylvania" and that "The said trustees having determined in the exercise of due care and prudence that it is unwise to sell any of the said investments at the present time, are under no duty to *123 do so. . . ."* The will contains a power to retain investments of the testator, but no power to make non-legal investments.
The court below dismissed the petition for lack of jurisdiction, saying "The trustees have doubts as to the law on a question of considerable difficulty and they come to the Court for a commentary on and exposition of the law which will guide them, and which would be binding on the parties. Such an advisory opinion is not within the judicial power." Thus, the sole question on this appeal is whether or not the petition was properly dismissed for lack of jurisdiction.
The question must be answered in the affirmative. No answer to the petition was filed by any of the adult parties in interest, and the guardian and trustee ad litem for minors, unborn issue and other unascertained interests states that he is "not greatly concerned whether *124
the Court has jurisdiction to entertain the petition or not." The manifest purpose of the petition was to obtain a judicial pronouncement of the Court's opinion purely by way of advice and assurance that the appellants would not be exceeding their authority in retaining the securities in question, and it is well settled that the giving of such advice is not within the judicial power of the orphans' court: Tyson's Estate,
In Reese v. Adamson,
Appellants frankly admit that the purpose of the proceeding was to obtain a "judicial interpretation" of the amendatory provisions of the Act of 1937, stating "appellants believe that the true meaning of the amendments is as argued, but they do not believe they are justified in guessing at the law in a matter of such obvious doubt." Clearly the same reasons which impelled dismissal of the petitions in the Reese and Pittsburgh *125 Charter Cases, to wit, lack of jurisdiction to render purely advisory opinions, imperatively required dismissal of appellants' petition.
Appellants contend that Section 49(e) 2 of the Fiduciaries' Act, as amended by Section 4 of the Act of May 28, 1937, P. L. 1037, requires the orphans' court to take jurisdiction of their petition. The Section, as amended, provides that "Where stocks, bonds, or other securities have been distributed in kind asabove provided, to any fiduciary, if such fiduciary be doubtful as to the propriety of retaining or making sale of such securities, he may apply to the orphans' court having jurisdiction of his accounts, by petition, for authority and direction to retain or sell the same; whereupon, after due notice to all parties interested, the said court shall make such order in the premises as to it may appear proper." Appellants argue that under this Section the Court is required to take jurisdiction where the doubt of the fiduciary as to the propriety of retention or sale and reinvestment in legals arises out of his uncertainty as to the latitude of discretion given him by the law, as well as where the doubt arises out of facts and circumstances affecting particular securities in such a way as to cause doubt as to the propriety of their retention or sale, as the case may be.
In the first place, it is to be noted that Section 49(e) 2 expressly applies only to securities which have been "distributed in kind" under Section 49(e) 1, which Section provides for the distribution in kind of securities remaining unconverted upon the distribution of a decedent's estate. In the second place, if this Section, properly construed, requires the taking of jurisdiction of a petition which, like the present one, seeks a purely advisory opinion interpreting the law, then this Court would be obliged to hold it invalid as a legislative effort to turn the courts from tribunals organized to determine controversies judicially into those of giving legal advice, a function not contemplated by our organic law:Reese *126 v. Adamson, supra, at 17; Pittsburgh's Consolidated Charter, supra, at 507; Cryan's Estate,
The decree is affirmed at appellants' cost.