The opinion of the court was delivered by: GIBSON
On November 2, 1945, the plaintiff filed its complaint and subsequently two amendments thereof. The defendant has moved to dismiss the complaint and its amendments on the ground that no relief thereunder can legally be granted.
The allegations of the complaint and amendments, are substantially as follows:
On or about September 21, 1931, The Bank of Pittsburgh National Association became insolvent within the meaning of that term as used in the National Bank Act, as amended, 12 U.S.C.A. § 21 et seq., and, by virtue of the authority vested by law in the Comptroller of the Currency of the United States of America, on the said date of September 21, 1931, he appointed C. O. Thomas as Receiver of said Bank to liquidate its assets. The said C. O. Thomas served in the said capacity of Receiver until March 31, 1933, when he resigned and Arthur R. Atwood was appointed as his successor. Arthur R. Atwood served as Receiver, as aforesaid, until August 17, 1935, and the Comptroller of the Currency appointed Avery J. Bradford as his successor as of August 17, 1935. On March 31, 1938, said Avery J. Bradford resigned as Receiver, as aforesaid, and on April 1, 1938, the Comptroller of the Currency appointed to succeed him, as Receiver of said Bank, Andrew B. Berger, who continued to act as such Receiver until December 4, 1941, when, all the proven claims against the said bank having been paid in full, with interest, all the assets of said bank were transferred to The Colonial Trust Company, of Pittsburgh, Pennsylvania, which had been elected agent for the shareholders of the said bank at a meeting duly called and held on February 25, 1941, in accordance with the provisions of Section 197 of Title 12 U.S.C.A. The Colonial Trust Company is now duly qualified and acting as agent for said shareholders.
The plaintiff, Fidelity Trust Company, Pittsburgh, Pennsylvania, a Pennsylvania, corporation, is trustee under the Will of John A. Harper, deceased, who died December 28, 1920, leaving a Last Will and Testament, probated January 3, 1921, and recorded in the Office of the Register of Wills in and for Allegheny County, Pennsylvania, in Will Book Volume 165, Page 541.
The Fidelity Trust Company filed its account in the Office of the Clerk of the Orphans' Court of Allegheny County, Pennsylvania, at No. 205 January Term, 1932, which said account was called for audit by the Orphans' Court of Allegheny County, Pennsylvania, on January 20, 1932.
At the audit of said account, the claim of C. O. Thomas, Receiver of The Bank of Pittsburgh National Association was presented for payment in the amount of $ 34,650, with interest from November 21, 1931, based on an assessment of $ 50 a share on 693 shares of the stock of The Bank of Pittsburgh National Association, held by the said estate. The audit hearing was adjourned pending the report of a trustee ad litem for all parties interested in said estate, except those who were in being and of full age, to be appointed by the Court.
On May 16, 1932, the audit hearing was resumed, no trustee ad litem having been appointed for the purpose of adjusting the claim of the Receiver of The Bank of Pittsburgh National Association.
At this time the assets of the John A. Harper Estate, according to the account of the Fidelity Trust Company, Trustee, of May 16, 1932, consisted of stocks, bonds, mortgages and cash, including 693 shares of the stock of the Bank of Pittsburgh National Association, having a then market value of $ 32,759.12.
At the hearing held on May 16, 1932, the Receiver of The Bank of Pittsburgh National Association agreed to accept the securities in the estate, other than the 693 shares of The Bank of Pittsburgh stock, in satisfaction of his claim of $ 34,650, and interest to date of $ 1,004.85, totaling $ 35,654.85, subject to a 2% commission on the corpus of the original account filed, amounting to $ 2,598.54.
On May 24, 1932, a Decree was entered in the said John A. Harper Estate at No. 205 January Term, 1932, confirming the Trustee's account and directing that the balance of the funds be distributed in accordance with a schedule of distribution.
In pursuance of said agreement of settlement and the Court Decree, the Fidelity Trust Company, Trustee, on July 8, 1932, delivered to C. O. Thomas, Receiver as aforesaid, the securities listed in said Court Decree, of the market value as of May 16, 1932, of $ 30,159.58, 'in full settlement of the stock assessment liability of the Estate of John A. Harper, Deceased, as owner of 693 shares stock at $ 50 per share -- $ 34,650.00.'
In pursuance of said authority, the said Receiver petitioned the District Court of the United States for the Western District of Pennsylvania at No. 2589, In Equity, to accept the assets of the said John A. Harper Estate distributed to him as such Receiver under Decree of the Orphans' Court of Allegheny County, Pennsylvania, at No. 205 January Term, 1932. At this time an Order was made by the Court on February 13, 1935 (two years and nine months after the Decree of the Orphans' Court) authorizing and directing Arthur R. Atwood, as Receiver of The Bank of Pittsburgh National Association, 'To accept from the Fidelity Trust Company of Pittsburgh the assets of the Estate of John A. Harper as delivered to the Receiver of The Bank of Pittsburgh National Association, Pittsburgh, Pennsylvania, by the Fidelity Trust Company of Pittsburgh, Pa., in accordance with the decree of the Orphans' Court in and for Allegheny County, Penna. at No. 205 January Term, 1932.'
The Fidelity Trust Company, Trustee under the Will of John A. Harper, deceased, is now the record owner of 693 shares of the capital stock of The Bank of Pittsburgh National Association, under Decree of the Orphans' Court of Allegheny ...