Appeals, Nos. 327 and 329, Jan. T., 1955, from decree of Orphans' Court of Elk County, June T., 1940, No. 10, in re estate of George F. Elliott, deceased. Decree affirmed: reargument refused December 16, 1957.
James Gregg, with him Edward T. Kelley and Thomas L. Wentling, for appellants.
Frank Gaffney, with him James S. Crawford, III, Rober F. Pontzer and Throp, Reed & Armstrong, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
George F. Elliott, a resident of Elk County, died testate January 22, 1940. Under his last will and testament the decedent, inter alia, created a trust wherein certain assets of his estate were to be held in trust by the Colonial Trust Company of Pittsburgh (now the Fidelity Trust Company) for the benefit of his then minor children until they respectively attained the age of 28 years.
On July 27, 1953 William E. Elliott (hereinafter referred to as Elliott), a son of decedent and a beneficiary under the the aforementioned trust, attained the age of 28 years and, under the terms of this trust, became entitled to payment of a one-third share of the corpus thereof.
The trustee, upon Elliott attaining the age of 28 years, prepared and filed a Third and Partial Account, together with a statement of the proposed distribution. Exceptions to this account were filed by the First National Bank in Greensburg, Pa., as Elliott's guardian, and by G. Fred Elliott, the latter Elliott's brother and a co-trustee under an inter vivos trust hereinafter referred to. The basis of these exceptions was that Elliott's income from the trust in the amount of $10,066.53 and his share of the corpus should be paid to his legally appointed guardian rather than to the trustees under the inter vivos trust hereinafter referred to.
As between Elliott's guardian and the trustees of an inter vivos trust, who is entitled to receive distribution from the decedent's testamentary trust of Elliott's share of both income and corpus?
On April 1, 1950, Elliott, 24 years old and in the military service, created in writing an inter vivos trust wherein Colonial Trust Company of Pittsburgh and his brother, G. Fred Elliott, were the named trustees. Certain provisions of this inter vivos trust must be noted: (1) while the settlor specifically conveyed to the trustees, in addition to real estate presently not involved, certain "cash on deposit or money and securities" listed on an attached schedule,*fn1 he also provided that the trustees "many receive any and all monies or other securities which will or may become due and payable to or distributable to the Settlor"; (2) the trust is to continue "until the trustees, relying upon adequate and competent evidence, shall determine that the settlor shall have been restored to health, and that the management of his estate shall not be a burden to him or impair his health"; (3) the trustees were given broad and extensive powers to be exercised in the administration of the trust.
On September 30, 1950 - 6 months subsequent to the execution of the inter vivos trust agreement - G. Fred Elliott petitioned the Court of Common Please of Westmoreland County for the appointment of a guardian for Elliott on the ground that he was mentally incompetent. After hearing, that Court ...