Appeal, No. 9, Jan. T., 1958, from decree of Orphans' Court of Chester County, Jan. T., 1957, No. 40 of 1956, in re estate of C. Herbert Bell, deceased. Decree affirmed.
Rowland C. Evans, Jr., with him Robert S. Gawthrop, Jr., Krusen, Evans & Shaw, and Gawthrop & Greenwood, for appellant.
William White, Jr., with him Thomas S. Weary, John O. Platt, Jr., Duane, Morris & Heckscher, and MacElree & Platt, for appellees.
Before Jones, C.j., Bell, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE COHEN
The question for determination on this appeal is whether the corporate co-executor of the estate either abused its discretion or violated any provision of law in charging counsel fees incurred in connection with the administration of the estate against the income of a residuary trust rather than the principal thereof.
C. Herbert Bell died on January 30, 1954, leaving an estate of approximately $5,000,000. In his will the decedent appointed his wife, a bank and an attorney as his executors and trustees. He gave his executors the power to retain attorneys and provided that "the salary or compensation of any such agent or attorney shall be paid out of the principal or income of my residuary estate as my corporate fiduciary in its sole discretion may determine...." (Emphasis supplied). The decedent left his residuary estate in trust and directed that a portion of the income therefrom be paid to a stepson, (the appellant herein), for his life and thereafter to the testator's widow for her life. On the termination of the trust, one-half of the principal was to be paid to the issue of the stepson and the other half to certain named relatives of the testator or their issue.
In February, 1956, the executors filed their account and included therein charges against the principal in the amount of $75,000 for legal services rendered in the administration of the estate.
Prior to the audit of the account, however, the corporate co-executor notified the appellant that it had changed its initial decision and had determined to charge against income all counsel fees. Therefore, in a statement of proposed distribution, this fiduciary requested the auditing judge to surcharge income for the $75,000 already paid out of principal for legal services
and to restore to principal that amount. Appellant unsuccessfully objected to the change in the allocation of counsel fees, and after the entry of a decree by the orphans' court dismissing his exceptions on this point, this appeal was taken.
The first contention of the appellant is that the allocation to income of counsel fees incurred in the settlement of the estate implies the accumulation of income for their payment and therefore violates the prohibition against acccumulations of income contained in ...