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CURRY APPEAL. (06/28/57)

June 28, 1957

CURRY APPEAL.


Appeal, No. 70, Jan. T., 1957, from decree of Court of Common Pleas of Blair County, June T., 1955, No. 67, in re George L. Curry, II. Decree affirmed.

COUNSEL

Martin Goodman, with him Alexander A. Notopoulos, for appellant.

B. C. Jones, with him Jones & Newlin, for appellee.

Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Cohen

[ 390 Pa. Page 107]

OPINION BY MR. JUSTICE COHEN

In 1950 George L. Curry, II, having become 21 years of age, established an irrevocable inter vivos trust with a corpus of $50,000 and named the First Blair County Bank, Tyrone, Pennsylvania, trustee. The trust instrument provided for the payment of income to the settlor for life, and thereafter, to his children until the youngest should reach 21, at which time the principal was to be paid in equal shares to the children and the issue of deceased children per stirpes. In default of surviving children or their issue, the fund was to be paid over to the settlor's then heirs-at-law.

In 1955 the settlor filed a petition in the Court of Common Pleas of Blair County to terminate the trust. Proceeding under Section 2(a) of the Estates Act of 1947, Act of April 24, 1947, P.L. 100, as amended, 20 P.S. § 301.1 to § 301.22 (Supp.), Curry alleged that a change in his status had caused the trust to become oppressive, and that the original purpose behind the creation of the trust could not be carried out. He prayed for partial termination of the trust and distribution of the corpus directly to him in the amount of $25,000. The record discloses that notice of the proceeding was given only to the trustee.

After a hearing, the court entered a decree dismissing the petition because it found no evidence to indicate that the purpose of the trust had become impracticable of fulfillment. The settlor obtained new counsel, and a petition for a rehearing was filed and granted. At the rehearing the settlor sought relief under the general equitable powers of the court and advanced two new theories; one, that the failure to include a revocation clause in the agreement was the result of mistake, and two, that the trust was testamentary in nature. The court affirmed its earlier decree, and refused to terminate

[ 390 Pa. Page 108]

    the trust either in whole or in part; hence, this appeal.

Section 2(a) of the Estates Act of 1947 provides: "The court having jurisdiction of a trust ... may terminate such trust in whole or in part ... provided the court after hearing is satisfied that the original purpose of the conveyor cannot be carried out ... and notice is given to all parties in interest or to their duly appointed fiduciaries." Act of April 24, 1947, P.L. 100, § 2(a), as amended, 20 PS § 301.2 (Supp). (Emphasis supplied).

Under this Act, when the parties whose interests would be adversely affected are not in esse, the court has the obligation to appoint fiduciaries ad litem in their behalf. If, therefore, this action to determine the trust is brought under the Estates Act of 1947, relief must be denied because the court has failed to make all persons in interest - ...


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