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STOTESBURY ESTATE. (01/24/57)

January 24, 1957

STOTESBURY ESTATE.


Appeal, No. 85, Jan. T., 1957, from decree of Orphans' Court of Montgomery County, May T., 1956, No. 44897, in re Estate of Edward T. Stotesbury, deceased. Decree reversed.

COUNSEL

Gordon A. Block, with him Maxwell Strawbridge, Edward Shippen Morris, and Wolf, Block, Schorr & Solis-Cohen, for appellants.

Thomas H. W. Jones, with him Edward S. Morris, and Cuthbert H. Latta, for appellee.

Before Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Jones

[ 387 Pa. Page 593]

OPINION BY MR. CHIEF JUSTICE JONES

The appellants, Frances H. Baird, Natalie E. Tyson and Edward S. Hutchinson, are the life beneficiaries of a trust created by the will of their grandfather, Edward T. Stotesbury, who died May 16, 1938. With respect to the remainders, the will provides that upon the death of each of the above-named grandchildren, the share of principal from which such grandchild was receiving the income at the time of his or her death shall be paid over and distributed to the children or lineal descendants of such deceased grandchildren, per stirpes and not per capita. The testator expressly directed, however, that "no child adopted by my said granddaughter, Natalie E. Tyson, shall be considered in any way entitled to participate in the estate of my said granddaughter." Natalie E. Tyson has three adopted, and no natural, children.

The testamentary trustees resigned on July 1, 1947. The orphans' court accepted the resignation and appointed as substituted trustees the Girard Trust Company (now Girard Trust Corn Exchange Bank) and the three life tenants. On April 14, 1952, the substituted trustees filed an account. At the same time, they petitioned the court to divide the trust into three separate trusts for the benefit, respectively, of the three life beneficiaries above mentioned and requested that the trust company and the respective life beneficiary be appointed trustee for each of the three trusts. The account was audited and the perition heard on June 11, 1952, and on August 20, 1953, an adjudication, confirming the account, was entered which also separated the trust into three trusts and appointed the trustees as prayed for in the petition.

On December 29, 1955, the three individual life tenants filed a petition for review of the adjudication and schedule of distribution entered by the court on August

[ 387 Pa. Page 59420]

, 1953. The court issued a citation to the trustees of the three trusts and to the guardian ad litem for minors in esse and trustee ad litem for all unborn and unascertained persons having a possible interest in the trusts to show cause why the review prayed for should not be granted. The corporate trustee answered, submitting itself to whatever order the court might make in the premises. The guardian and trustee ad litem also answered but denied the right of the petitioners to the review sought, praying that the petition be dismissed.

The petition set forth in material part that in the account audited and adjudicated on August 20, 1953, there were shown "stock dividends, stock exchanges, and stock rights, and capital gains and like items ... all of which were included in the principal account"; that the "petitioners have since learned that this was an error of law, and that the same or some of the same should have been apportioned and included in income rather than in principal"; and that "No distribution of principal has been made which would be affected by reason of any hearing or re-audit of the said account."

After a hearing on the petition and answers, the court entered a final decree dismissing the petition. From that decree, the income ...


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