46 A.2d 174 | Pa. | 1946
Argued January 7, 1946.
The will of George E. Scott created a trust composed of certain stocks of the testator and provided the income therefrom was to be paid to his wife, Marie Jansson Scott (later Buzby), for life and the principal to whomever she may by will appoint and in default of appointment to his next of kin under the provisions of the Intestate Law of Pennsylvania. Certain of these stocks represented mining interests and by an express provision in the trust these were to remain intact and not be sold by the trustees. Charles E. Wiley and Mrs. Buzby were appointed trustees. Mrs. Buzby died exercising the above power of appointment in favor of Woodland Presbyterian Church. Her executor filed his account (Charles E. Wiley, the co-trustee having died previously), and admitted that the mining stock which was to be retained had been sold for $2,000 by the trustees and that Mrs. Buzby had converted the proceeds to her own use. No account having been made of the receipt of this money, the substituted trustee, F. Page Siebert, appointed by the court in place of the deceased trustees under the will, sought to surcharge her estate. The learned auditing judge permitted the surcharge which was confirmed absolutely by the court en banc and affirmed by the Superior Court (
Appellant opposing the surcharge contends that Mrs. Buzby, the life-tenant trustee, having a general testamentary power of appointment could appoint the trust property to her own estate if she so pleased, and that Woodland Presbyterian Church, the real party in interest for which the substituted trustee is acting, has no standing to complain of the conduct of its appointor. It is argued that a life tenant with a general testamentary *577
power of appointment has an estate tantamount to a fee, and the principle of law applied in Curran's Estate,
In Curran's Estate, supra, and Perkins's Trust Estate,
Lyon v. Alexander,
Therefore, under the facts of the instant case we agree with the learned courts below that "a life beneficiary of a trust estate who has a general testamentary power of appointment,and who is a testamentary trustee, may not terminate the trust in whole or in part by appropriating the trust res." This trust estate is therefore deficient in the amount of $2,000, the value of the stock, and the estate of the life-tenant trustee, Mrs. Buzby, was properly surcharged in that amount.
Decree affirmed. *579