Appeal, No. 64, Jan. T., 1955, from decree of Orphans' Court of Montgomery County, Aug. T., 1954, No. 53,823, in Estate of Joseph A. Ranck, Deceased. Decree affirmed.
Frederick B. Smillie, for appellant.
Harry J. Alker, Jr., for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmannno, JJ.
OPINION BY MR. JUSTICE BELL
Joseph A. Ranck died testate on January 11, 1951, leaving as his executors and trustees the Montgomery National Bank of Norristown and his wife, who predeceased him. The Montgomery National Bank merged with the Philadelphia National Bank on or about February 20, 1954, and within 30 days thereafter Josephine R. Lanigan, daughter and life tenant, petitioned the Orphans' Court of Montgomery County to appoint Montgomery-Norristown Bank and Trust Company and herself as substituted trustees. Her petition was sworn to and unless material facts therein alleged were denied or disproved, it was not necessary, under Orphans' Court practice, to require her to present testimony in support thereof. The Court, after careful consideration of the petition and the testimony presented by the original trustee, granted the petition and from the decree entered thereon the Philadelphia National Bank has appealed.
The Court below correctly stated that there are two questions raised by Mrs. Lanigan's petition: (1) Whether the Court could and should appoint a substituted corporate fiduciary; and (2) Whether the petitioner could and should be appointed as individual co-trustee.
The Banking Code of May 15, 1933, P.L. 624, § 1410, 7 PS, § 819-1410, provides that in the event of a merger of one or more banks and trust companies, the parties interested in any investments or property held by the
original fiduciary may, within 30 days of the notice of merger, apply for the appointment of a substituted fiduciary;*fn* and the Court to whom such application is made "shall have the power to appoint a substituted fiduciary ...." The Act is discretionary, but it was clearly the intention of the Banking Code to give to the beneficiaries of an estate, in the event of a merger, the right to appoint a substituted corporate fiduciary, and in the absence of unusual facts or circumstances the Court to which the application is made should appoint a reputable substituted corporate fiduciary.
The Philadelphia National Bank objects to the appointment of a substituted trustee for several reasons. The first reason alleged is that the Banking Code provides, impliedly at least, for the appointment of a substitute corporate fiduciary, but it contains no provision for the appointment of an individual fiduciary or co-fiduciary. The language of the Code, while not clear, would seem to sustain this contention. However, the Orphans' Court has the right and power, unless the will or other pertinent instrument provides otherwise, to appoint an individual trustee or individual co-trustee. See Fiduciaries Act, April 18, 1949, P.L. 512, § 901, 20 PS, § 320.901; Orphans' Court Act, August 10, 1951, P.L. 1163, 20 PS, § 2080.301; Stolzenbach's Estate, 346 Pa. 74, 29 A.2d 6.
The Philadelphia National Bank points out that since the trustees have the power to pay to Mrs. Lanigan, in their discretion, amounts of principal which they deem advisable, it is unwise and improper to appoint her a co-trustee (a) because she may have a conflicting interest as trustee and ...