Appeals, Nos. 365 and 382, Jan. T., 1957, from decree of Orphans' Court of Luzerne County, June T., 1957, No. 464, and August T., 1957, No. 464, in re estate of Forest Ludwick Garrison. Decree affirmed.
C. W. Dickson, for appellant.
Thomas C. Moore, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE BENJAMEN R. JONES
This appeal arises from the refusal of an Orphans' Court to appoint an additional trustee, resident in Pennsylvania, to serve with a non-resident testamentary trustee to handle and expend funds of the trust for certain community purposes.
Forest L. Garrison, a resident of West Virginia, died testate, on November 26, 1934. Under his will he appointed the Kanawha Banking and Trust Company of Charleston, West Virginia, as trustee "to carry out all of the provisions of [his] will". The pertinent provisions of the will are as follows: "The residue of the income from my estate ... shall be disposed of as follows: Twenty per cent (20%) shall be retained by the Trustee and reinvested for the estate. Eighty per cent (80%) shall be paid to the First National Bank of Shickshinny, Pennsylvania, to be judicially expended for the sole use and benefit of the Borough of Shickshinny, Pennsylvania, as may be agreed upon by the Board of Directors of the said
First National Bank of Shickshinny, Pennsylvania, and the Town Council of said Borough of Shickshinny, Pennsylvania. In case a sum of ten thousand Dollars ($10,000.00) accumulates in said Bank and the directors and Town Council above referred to, fail to agree upon the expenditure: Said amount shall be forfeited to said Borough and be paid to the County Poor District in which the Borough of Shickshinny is located."
For twenty-three years the West Virginia trustee has annually paid the stated income to the appellant bank and the income has been expended in the manner and mode agreed upon by appellant's directors and the Shickshinny Town Council.
On April 10, 1957 the appellant bank presented a petition to the Orphans' Court of Luzerne County requesting that it be appointed "a resident trustee within the Commonwealth of Pennsylvania to act in conjunction with the non-resident trustee in the management and disposition of said trust, and to act as an additional trustee within the Commonwealth of Pennsylvania to serve with the non-resident trustee ...". The court then granted a rule to show cause why the appointment should not be made. The Borough of Shickshinny was given notice of the proceedings and filed an answer in the nature of a demurrer which set up, inter alia, that no legal or factual reason was averred why a trustee should be appointed, that the court had no jurisdiction over this out-of-state trust, that the Shickshinny Bank was a mere depository of funds and expenditures from the funds were not by the bank as such, but by its directors and ...