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ESSIG ESTATE. APPEAL ST. MARYS CEMETERY ASSN. (ESSIG ESTATE) (07/20/50)

July 20, 1950

IN RE ESSIG ESTATE. APPEAL OF ST. MARYS CEMETERY ASSN. (ESSIG ESTATE)


COUNSEL

J. Hay Brown, Jr., Lancaster, for appellant.

Arnold, Bricker & Beyer, Harris C. Arnold, Lancaster, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich and Arnold, JJ.

Author: Reno

[ 167 Pa. Super. Page 67]

RENO, Judge.

St. Mary's Cemetery Association appealed from the final decree entered in the audit of the account of the successor trustees under the will of Sebastian Essig.

The decedent died on April 26, 1878, and his will provided: '* * * I give to the Trustees of Saint Mary's Catholic Church their successors and assigns the sum of five hundred (500) dollars, the annual interest of which shall be applied to keeping in good repair the grave of my daughter Lizzie A. L. Hook and the graves of my said wife and of myself, and for keeping in good repair the fence enclosing our burial lot in the Cemetery of said Saint Mary's Catholic Church, * * *' (Emphasis supplied.) The original trustees declined to act and the present accountants are successors to intermediate trustees appointed by the court.

The account disclosed a balance of $534.94 principal and $59.96 income. It covered the period from 1934 to 1948, and revealed over the years an annual gross income of $13.75 and payments to the cemetery association for upkeep of the burial plot of $4 a year, except during 1940 when $6 was paid and 1947 when $10

[ 167 Pa. Super. Page 68]

    was paid.*fn1 In 1937 the markers were cleaned at an expense of $25. From accumulations of income a monument was erected in 1934 at a cost of $550 and in 1939 a foundation for a tombstone cost $234.99.

The cemetery association excepted to the account, and claimed the unexpended income. It proposed to use the award for its general purposes in the operation and maintenance of parts of the cemetery other than the Essig burial lot. President Judge Appel, the auditing judge, allowed the claim to the extent of $50, leaving $9.96 to the accountants and directed them 'to continue payment from the annual income [to the cemetery] such sums approximately relative to those heretofore made as indicated in the present accounting, until such time as the Court may make additional orders.' The auditing judge's successor, President Judge Bowman, holding that there was 'no unreasonable accumulation of income and, therefore, no surplus income', sustained the accountants' exceptions, and in the final decree set aside the award to the cemetery.

The ground upon which Judge Bowman pitched his decision is unassailably sound. Without violating any statutory or testamentary direction against accumulations, trustees may, within reasonable limits retain temporarily a certain amount of surplus income in aid of the judicious management of the trust and to provide for future contingencies. In re Sinnott's Estate, 310 Pa. 463, 165 A. 244; In re Howell's Estate, 180 Pa. 515, 37 A. 181. Cf. Estates Act of April 24, 1947, P.L. 100, ยง ...


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