Appeals, Nos. 133 and 209, Jan. T., 1949, from decree of Orphans' Court of Philadelphia County, 1945, No. 3262, in re Trust Under Deed of John M. Kennedy, Jr. Decree reversed.
Jerome L. Markovitz, for Administrator of deceased Trustee, appellant.
John Russell, Jr., with him Morgan, Lewis & Bockius, for Fidelity-Philadelphia Trust Co., Trustee, appellant.
William H. Lathrop, with him Joseph W. Swain, Jr., J. Edgar Wilkinson and Montgomery, McCracken, Walker & Rhoads, for appellees.
Before Maxey, C.j., Drew, Linn, Stern, Patterson, Stearne and Jones, JJ.
OPINION BY MR. JUSTICE JONES
The principal question on these appeals is whether the trustees under the inter vivos deed of trust, here involved, are entitled to compensation on corpus when their fiduciary duties in respect thereof terminated or, stated otherwise, are the trustees precluded by the terms of the trust instrument from claiming more for their services than the commission on income referred to in the trust indenture. The learned court below held that the compensation was expressly limited to the commission on income and entered a decree accordingly. Each of the trustees has appealed, the interests being separate in the circumstances as will hereinafter appear.
On July 1, 1927, John M. Kennedy, Jr., in pursuance of a separation agreement between himself and wife, assigned and transferred to Frederick M. Leonard and Fidelity-Philadelphia Trust Company, in trust, certain bonds and mortgages in a substantial principal amount. The trust deed provided that the trustees should pay monthly to the settlor's wife a specified portion of the income from the trust estate remaining after deducting therefrom "... all necessary and proper charges and expenses, including all taxes payable on the trust property, all insurance premiums, all taxes on real estate bought in to protect mortgage investments but not yet sold for reconversion into new mortgage investments, and a commission of five (5) per cent to the Trustees on all the said income...."
The trust indenture further provided that any net income left, after the required payments to the settlor's wife, was to be paid to the settlor or to his estate during the period of the trust. Upon the death of the settlor's wife, the trustees were to pay over to the settlor or his estate the corpus of the trust then remaining in the hands of the trustees "... after the payment of all the expenses of executing the Trust... and all lawful charges on the property in the Trust Estate,..." (Emphasis supplied). The settlor's wife was entitled to withdraw, from time to time, an aggregate of $50,000 from the principal of the trust which she did withdraw. By another provision of the trust deed, the settlor became entitled to, and did, withdraw from corpus $35,000 up to the time of his death on May 13, 1931. The life tenant is still living and the trust, therefore, endures.
The original individual trustee, Frederick M. Leonard, died on April 7, 1929. Elizabeth E. Britton was thereupon substituted for him as a trustee in accordance with an express provision of the trust agreement. Elizabeth E. Britton has since died and, following her death, the account, upon audit of which the instant questions arose, was filed. The Fidelity-Philadelphia Trust Company claimed, on its own behalf, commissions on the total amount of principal withdrawn from the trust; and the administrator of the estate of Elizabeth E. Britton, likewise, claimed a commission on the withdrawals from the trust during her tenure as a cotrustee, $5,000 of the life tenant's withdrawals having occurred during Leonard's service as trustee for which no claim was or is made. Elizabeth E. Britton's administrator ...