Appeal, No. 169, Jan. T., 1958, from decree of Orphans' Court of Philadelphia County, April T., 1922, No. 293, in re estate of Thomas J. Jeffries, deceased. Decree reversed.
Harold Cramer, appellant, in propria persona.
Robert T. McCracken, with him Samuel S. Logan, Jr., for appellees.
Before Bell, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE BELL
The question involved is a very narrow one: Can the testamentary trustees purchase shares of stock?
Thomas J. Jeffries, testator, died on February 23, 1922, leaving a last will dated January 27, 1922. He left his residuary estate in trust for certain persons and purposes. Testator then provided in the Seventh item of his will pertinently as follows: "SEVENTH: I confer power upon my Trustees during the activity of the trust: ... To retain any investments which I may have made, and to alter, vary, and change investments and reinvestments from time to time, without being
confined to what are known as legal securities; but they shall have no power to purchase shares of stock."
The testamentary trustees on December 28, 1956 filed a partial account for the period November 9, 1956 to December 11, 1956. The account or the "Statement of Proposed Distribution" showed that the trustees had purchased 10 shares of the common stock of E. I. DuPont de Nemours & Co. and immediately sold the stock at a loss of $25.18.*fn* The Auditing Judge, upon the demand of the trustee ad litem, surcharged the trustees for the loss. The exceptions filed by the trustees were sustained by three judges, with two judges dissenting, and the Court instructed the trustee ad litem to appeal from this decision to this Court. The trustee ad litem thereupon took this appeal from the lower court's final decree.
Section 18 of the Fiduciaries Investment Act of 1949, P.L. 1828, 20 P.S. § 821.18 provides: "The testator or settlor in the instrument establishing a trust may prescribe the powers, duties and liabilities of the fiduciary regarding the investment or noninvestment of principal and income and the acquisition, by purchase or otherwise, retention, and disposition, by sale or otherwise, of any property which, at any time or by reason of any circumstances, shall come into his control; and whenever any such provision shall conflict with this act, such provision shall control notwithstanding this act.*fn** In ...