Appeal, No. 129, March T., 1955, from decree of Orphans' Court of Allegheny County, 1938, No. 5105, in re Estate of W. L. Trimble, Dec'd. Decree affirmed.
Charles F. C. Arensberg, with him Ella Graubart, Richard B. Tucker, Jr. and Patterson, Crawford, Arensberg & Dunn, for appellant.
John C. Hanna, with him Metz, McClure, Hanna & MacAlister, for appellee.
Before Stern, C.j., Stearne, Jones, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ARNOLD
T. P. Trimble, Jr., sole surviving trustee under the will of W. L. Trimble, deceased, appeals from the decree of the court below revoking his appointment of the Peoples First National Bank & Trust Company as a successor trustee to administer, with him, the trust established by the will; ordering the parties in interest to submit to the court nominees from among whom the court would select successor trustees; and staying administration other than normal receipts and disbursements until the appointments should be made.
The pertinent provision of the will reads: "I do hereby nominate and appoint Chas. P. Trimble, T. P. Trimble, William F. Trimble, Jr., T. P. Trimble, Jr. and Annetta F. Trimble trustees. After the death ... of any of them I direct that their successors shall be chosen by their survivors... A majority of my trustees shall have all the power and authority given herein or under the law to the whole number above named. In case there should be a complete vacancy by reason of the death ... of my trustees, the beneficiaries who are of full age may choose and appoint not more than three trustees ..., or ... name a trust company ... if they so desire, with such powers and authority as may be vested in it by a majority of the interested parties ..." (Italics supplied).
Two of the named trustees died without having qualified or served, and no successor trustees were appointed in their stead. The remaining three, - T. P. Trimble, William F. Trimble, Jr. and T. P. Trimble, Jr., - proceeded to administer the trust. Subsequently, T. P. Trimble and William F. Trimble, Jr. died, no successor trustees being appointed until T. P. Trimble, Jr. attempted the appointment in question.
Three of the income beneficiaries of the trust filed their petition for revocation of the appointment made,
and for appointment of successor trustees under Section 901 of the Fiduciaries Act of 1949, as amended, whereupon the court below ordered as hereinbefore mentioned. This appeal is by the surviving trustee only, who contends that: (1) the will does not require five trustees at all times; (2) the sole surviving trustee may administer the trust; (3) the power to appoint successor trustees is vested in the surviving trustee and the court is without authority to appoint; (4) since the parties and the courts had permitted administration of the trust for a period of years without appointment of successor trustees, it constituted an interpretation permitting the action of the surviving trustee; and (5) the court had no power to stay administration until the court's appointment of successor trustees.
Of course full effect must be given to the intent of the testator as expressed in the words of his will, and the power granted being that of the named trustees to appoint their successors, it will be strictly construed. See Boning's Estate, 214 Pa. 19, 21, 63 A. 296, where the Court stated: "An authority so extraordinary in its character which is not only in derogation of the usual course of law but deprives the parties in interest of the right given to them by act of assembly to nominate a successor in the trust, can only be conferred by clear, unequivocal and unambiguous terms ..." We cannot but hold that the testator intended that any substitution of trustees had to be made by more than one of the original trustees. He provided that "after the death ... of any of them [trustees] ... their successors shall be chosen by their survivors." If he had desired that even one should have the power of ...