Appeal, No. 209, Oct. T., 1955, from decree of Orphans' Court of Lancaster County, June T., 1917, No. 46, in re estate of Max Schultz, also known as Max A. Schultz and Maximillian Schulz, dec'd. Decree affirmed; reargument refused February 16, 1956. Appeal from decision of register of wills refusing grant of letters c.t.a. Before BOWMAN, P.J.
Daniel H. Shertzer, for appellant.
Robert Ruppin, with him Joseph R. Byars, for appellees.
Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.
[ 180 Pa. Super. Page 238]
Max Schulz died in 1917 seized of a farm in Lancaster County. By his will the farm, as a part of his residuary estate, was devised to his executor with direction to sell the land within two years from the testator's death. Of the proceeds of sale he bequeathed equal one-seventh shares to each of six of his children. The remaining share he directed to be retained by his executor in trust for his seventh child, Frank, and his wife Lena, for lives and the life of the survivor of them. On the death of the life tenants the testator directed that the entire corpus of the trust be divided equally among their children. Testator named his son Edward as his executor.
[ 180 Pa. Super. Page 239]
The executor never converted the real estate into personalty by sale as directed by the testator. On March 24, 1920 five of the children of Max Schulz conveyed their undivided interests in the farm to their brother Edward Schulz. Frank Schulz, the surviving life tenant of the remaining one-seventh share in the land (his wife having predeceased him), joined in the deed. The consideration for the sale was $12,000. The deed recites that "... one seventh (1/7) of the purchase price should be held in trust for Frank Schulz and his children for the purposes specified in the will of Maximillian Schulz ..." There were seven children of Frank and Lena Schulz, five of whom were minors at the time of the above sale of interests in the land to Edward Schulz but none of them joined in the conveyance either in person or by guardian. Nevertheless Edward Schulz thereafter treated the farm as his own, freed from the trust created by the will, and the deed recited, although erroneously, that "... all of the parties hereto are all of the heirs and legal representatives of the said Maximillian Schulz, deceased, and are all of the parties who now have or hereafter might or could have any interest in the said real estate and by arrangement among all of the parties hereto it has been agreed to execute this conveyance so that the said Edwin J. Schulz [Edward Schulz] the grantee herein shall have an absolute fee simple title in the premises free and discharged of all claims whatsoever which any of the parties hereto might or could have in the said real estate, or in any personal property belonging to the said decedent."
Edward Schulz the executor and testamentary trustee died on January 6, 1941; since then no one has been appointed as his successor nor as administrator d.b.n.c.t.a. of the estate of Max Schulz. Frank, the surviving life tenant, died on August 5, 1943 leaving seven
[ 180 Pa. Super. Page 240]
children to survive him all of whom by that time were of full age. On July 6, 1951, Elvin T. Schulz, one of the seven children of Frank Schulz, the life tenant, petitioned the orphans' court for a citation on all parties to show cause why the register of wills should not be directed to grant letters d.b.n.c.t.a. in the estate of Max Schulz, although more than twenty-one years after his death, in accordance with § 302 of the Fiduciaries Act of April 18, 1949, P.L. 512, 20 PS § 320.302. The orphans' court denied the petition and we affirmed the order. The Supreme Court allowed an allocatur and in Schulz Estate, 374 Pa. 459, 98 A.2d 176*fn1 our decree and that of the orphans' court were reversed with a direction to the orphans' court to grant the prayer of the petition.
The Supreme Court as a basis for its order concluded that: "All that Edward Schulz acquired by the deed ... was the respective individual shares of his brothers and sisters" and, in effect, since Frank had only a life estate in a one-seventh share, he did not transfer anything to Edward by joining in the deed; there was no sale by the fiduciary and the mere failure of the trustee to execute the trust and the failure of the beneficiaries to compel him to perform it did not terminate the trust, nor extinguish the beneficiaries' interests; and since Frank's children, the remaindermen under the trust, were not estopped by laches under ...