Appeal, No. 57, March T., 1953, from decree of Court of Common Pleas of Beaver County, Dec. T., 1946, in Equity, No. 14, in case of Nellie Anderton and Margaret J. Keller, Exrx., Last Will and Testament of Pearl Vannoy, deceased, and Nellie Anderton, Admrx., Estate of John J. Patterson, deceased, v. John Q. Patterson. Decree set aside and record remanded; reargument refused May 4, 1953.
Charles M. Barrickman, with him Edwin M. Wallover and Buchanan, Barrickman & Wallover, for appellant.
Leonard L. Ewing, with him Reed, Ewing & Ray, for appellees.
Before Stern, C.j., Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE CHIDSEY
On April 10, 1930 John Q. Patterson, the appellant, and his father, John J. Patterson, entered into a written agreement. On the same date John J. Patterson conveyed title to a certain hotel property to John Q. Patterson. These instruments and the subsequent actions of John Q. Patterson formed the basis of a bill in equity which was before this Court in Anderton v. Patterson, 363 Pa. 121, 69 A.2d 87. In that appeal the agreement of April 10, 1930 was construed by this Court to be a declaration of trust whereby John Q. Patterson was constituted a trustee for his father, John J. Patterson, for the life of the father, and after the father's death, for appellant and his two sisters. The trust was held to apply to both the income from the operation of the hotel property and the proceeds from its sale. This Court also approved the removal of John Q. Patterson as trustee and remanded the record for an accounting by him as such trustee for the period from the inception of the trust, April 10, 1930, until the date of his removal as trustee. Pursuant to this order a substituted trustee was appointed and hearings were held before him as auditor.
The hotel property was sold by the substituted trustee at a public sale and the sum of $25,200 was realized. This sum, adjusted by certain charges and credits, was scheduled for distribution by the auditor among Nellie Anderton (sister of John Q. Patterson), the Estate of Pearl Vannoy (deceased sister of John Q. Patterson)
and John Q. Patterson. The share of the latter, however, was charged by the auditor with accrued income due the other beneficiaries and certain costs together amounting to $4,332, and the balance of his share awarded to the Estate of John J. Patterson. In the decree nisi of the court below John Q. Patterson's share of the proceeds of the sale was stated to be $4,706.87, and this amount was awarded to the Estate of John J. Patterson. The final decree of the court below confirmed the decree nisi and in addition ordered John Q. Patterson to pay $9,805.48 to his father's estate. John Q. Patterson appeals from this decree.
The trust agreement of April 10, 1930 provided, inter alia, "WHEREAS, the said John Q. Patterson, in consideration of the execution and delivery of said deed for said premises, and a further sum of One ($1.00) Dollar to him in hand paid, the receipt whereof is hereby acknowledged, has agreed to collect all outstanding debts and credits due to him, the said John J. Patterson that he will borrow, upon first bond and mortgage, upon said premises herein conveyed, the sum of Fifteen thousand ($15,000.00) Dollars or such other sum of money as may be necessary to pay and liquidate the debts due and owing by the said John J. Patterson; that he will rent said premises and from the said rents, issues and profits thereof, pay all taxes, charges and expenses for the upkeep of the same, and in addition to the foregoing, will pay unto the said John J. Patterson the sum of One hundred twenty-five ($125.00) Dollars per month for and during the term of his natural life.". Paragraph 7 of the agreement also provided that John Q. Patterson pay $125 per month to John J. Patterson for life. The court below construed the agreement to require the appellant to pay the sum of $125 per month to his father for life in addition to the rental value of the trust property. John J. Patterson
died intestate on Frebruary 5, 1945 and the $125 monthly payment was never made to him during his lifetime. The amount due to the Estate of John J. Patterson under this provision of the trust agreement as construed by the court below as $22,250.*fn1 This ...