Appeals, Nos. 126 and 127, Jan. T., 1957, from decree of Orphans' Court of Franklin County, No. 5, 1955, in re estate of Thomas J. Brereton, deceased. Decree affirmed.
William J. Toy, with him John A. Smarsh, for appellant.
George S. Black, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Jones and Cohen, JJ.
OPINION BY MR. CHIEF JUSTICE JONES
Thomas J. Brereton died testate on February 3, 1929. He specifically devised and bequeathed to his wife his residence with contents and made several other specific and pecuniary bequests. The rest, residue and remainder of his estate he placed in trust, naming two of his sons, Seton L. and O'Hara D. Brereton, as executors and trustees. The will made provision for the appointment of a successor fiduciary in the event of the death or resignation of either of those nominated.
The will provided for the payment to the testator's widow for life of a sum certain from trust income and further bequeathed the income from the trust to his children or their widows, per capita, or to their descendants, per stirpes, with direction that, at the expiration of twenty-one years after the death of his last descendant, who had been living at the date of the testator's death, the trustees should divide the principal of the trust into a commensurate number of shares and distribute such shares of the corpus among his descendants, per stirpes.
Seton L. Brereton died shortly after qualifying as an executor; and the trust was administered from May 15, 1931, until July 24, 1942, by O'Hara D. Brereton as sole trustee. On the latter date, Francis M. Brereton, another son of the testator, having been elected co-trustee consonantly with the relevant provision of the will, qualified as such and assumed the discharge of his fiduciary duties. No account of the trust was
ever filed until March 27, 1954, which was subsequent to the date of O'Hara D. Brereton's death.
During the period when O'Hara D. Brereton was in sole control and management of the trust estate, he had advanced to himself against future distributable income that might become due him as one of the life beneficiaries of the trust the aggregate sum of $34,422.48; and, by July 9, 1947, such advancements, less certain credits, constituted an overdraft by O'Hara D. Brereton of $24,689.45. The parties in interest, having discussed this situation, came to an agreement as to how O'Hara's indebtedness to the trust for the overdraft could be liquidated. The arrangement was committed to a writing which was signed and sealed on July 9, 1947, by the life beneficiaries of the trust income and the trustees of the trust.
At the audit of the surviving trustee's account, two of the three surviving children of the testator attempted to impress the share of the income, which under the terms of the will had been O'Hara's in his lifetime, with a charge for the amount of the overdraft against him unrefunded at his death. The auditor refused so to charge the trust income payable, after O'Hara's death, to his widow and children and awarded proportionate distribution to them of the income from the trust which had accrued after O'Hara's death. All that was before the auditor for report was the distribution of accumulated income as accounted for by the surviving trustee. Exceptions to the award were dismissed by the auditor whose report was ...