Appeal, No. 156, March T., 1956, from decree of Court of Common Pleas of Westmoreland County, Nov. T., 1950, No. 157, in re estate of William E. Elliott. Appeal quashed.
Christ C. Walthour, with him James A. Danahey, William T. Dom, and Kunkle & Trescher, for appellant.
James Gregg, with him Thomas L. Wentling, Edward T. Kelley and Portser, Gregg & Nichols, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
This is an appeal by a co-trustee under an inter vivous trust from a decree of the Court of Common Pleas of Westmoreland County refusing to vacate a previous order of that court finding the settlor of the trust unable to take care of his property and appointing a guardian of his estate.
On April 1, 1950 William E. Elliott created an inter vivos trust under the terms of which he was the sole beneficiary and the Colonial Trust Company (now, by merger, the Fidelity Trust Company) and George F. Elliott were trustees. On September 19, 1950, George F. Elliott, a brother of William E. Elliott, presented a petition to the Court of Common Pleas of Westmoreland County to have William E. Elliott adjudged weak-minded and to have a guardian appointed for his estate. After a hearing, the Court, on September 30, 1950, adjudged William E. Elliott unable to take care of his property and appointed the First National Bank of Greensburg as guardian of his estate.
On October 1, 1954 - over four years subsequent to its appointment as guardian - the First National Bank of Greensburg, as guardian, instituted a proceeding to terminate the inter vivos trust and have the assets thereof turned over to it as guardian. In this proceeding the corporate trustee (appellant) alone, by way of preliminary objections, attacked the order of September 30, 1950 appointing the bank as guardian upon
the ground that the court lacked jurisdiction to make the appointment. In order to secure a preliminary determination of this question the corporate trustee alone filed a petition for a rule to show cause why the order of September 30, 1950 should not be vacated to which petition the guardian made answer. After a hearing, the court below discharged the rule and from that decree this appeal was taken.*fn1
Appellant attacked the guardian's appointment upon the ground that the court was without jurisdiction to act because (1) the petition for the appointment of the guardian failed to aver the jurisdictional fact of the alleged incompetent's residence within the county, (2) the inter vivos trust then in existence sufficed to protect the alleged incompetent from any designing persons and (3) since it, as corporate trustee, had the incompetent's property in its possession under the trust there existed no estate in connection with which a guardian could be appointed.
A motion to quash this appeal has been filed averring, inter alia, that the appellant-trustee has no standing to attack the order of appointment of the ...