Appeal, No. 138, March T., 1956, from decree of Orphans' Court of Allegheny County, 1941, No. 1545, in re: deed of trust of Harrison R. McCready; Appeal of Margaret Luella Schwall. Decree affirmed.
Emory A. Schwall, with him William A. Challener, Jr., for appellant.
Vincent M. Casey, with him Charles J. Margiotti, Frank R. Bolte, and Margiotti & Casey, for appellee.
Before Stern, C.j., Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE BELL
Early in September 1930, Harrison R. McCready was in a sanitarium for treatment as a habitual drunkard. He was married and had one child, a minor nine months of age. On September 6, 1930, Mrs. McCready had a petition prepared in the nature of a lunacy proceeding.
On September 9, 1930, McCready examined the present deed of trust and executed it the next day, viz., September 10, 1930. The trust fund amounted to $150,000. Several weeks later Mr. and Mrs. McCready resumed living together. In March 1931, a final separation occurred and on November 30, 1931, Mrs. McCready obtained an absolute divorce from Mr. McCready. Since that divorce she has twice remarried. On July 10, 1933, McCready attempted to set aside the deed of trust of September 10, 1930, on grounds of his mental incapacity. His complaint, after a full hearing, was dismissed by the Court.
After the McCreadys' daughter became twenty-one years of age, the trustee filed its first account in Court. The daughter contended she was entitled under the deed of trust to receive directly from the trustee one-half of the net income of the trust from the date of her majority until the death of her mother. During the minority of the daughter, the trustee paid the net income, averaging approximately $3500. to $4000. per year to the mother, who expended a part of it for the support of her daughter during minority. Mrs. McCready continued to give to her daughter after her majority and until the daughter's marriage, an apartment and/or food which was the equivalent (according to the daughter) of $75. a month. Whether these payments after majority were made out of love and affection or out of a feeling of obligation (under the deed of trust) does not clearly appear.
The deed of trust or trust agreement was dated the 10th day of September, 1930, and was made between Mr. McCready and his wife and the Commonwealth Trust Company of Pittsburgh as trustee. The agreement recited that unhappy differences had arisen between McCready and his wife as a result of which they had been living separate and apart and "it has become
necessary, ... to make provision for the maintenance and support of his wife and their child, ...