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FREIHOFER ESTATE. (07/17/61)

July 17, 1961

FREIHOFER ESTATE.


Appeal, No. 35, Jan. T., 1962, from decree of Orphans' Court of Montgomery County, No. 50581, in re estate of Stanley H. Freihofer, deceased. Decree affirmed with modifications; reargument refused August 7, 1961.

COUNSEL

W. Hamlin Neely, with him Snyder, Wert, Wilcox, Frederick & Doll, for appellant.

William H. S. Wells, with him Fairfax Leary, Jr., and Saul, Ewing, Remick & Saul, and High, Schwartz, Roberts & Seidel, for appellee.

Before Jones, C.j., Bell, Jones, Cohen, Bok and Eagen, JJ.

Author: Bell

[ 405 Pa. Page 165]

OPINION BY MR. JUSTICE BELL.

A very narrow question is presented. Did the Orphans' Court have jurisdiction of a petition to terminate

[ 405 Pa. Page 166]

    a voting trust which was illegally entered into by an executrix-testamentary trustee?

Stanley H. Freihofer died July 31, 1941, leaving a last will*fn1 which was probated August 7, 1941. The widow is the sole beneficiary of income as well as the present sole executor, sole trustee and the present petitioner.

Freihofer gave all his shares of stock in the William Freihofer Baking Company in trust to pay the net income to his wife with power of appointment of principal to and among their issue who survived his wife, and in default of appointment to their issue per stripes who were living at her death. The will also contained a provision authorizing, the payment to his wife - if the net annual income is less than $6000 in any year - out of principal any balance necessary to make up any deficit under $6000. The will also contained a spendthrift trust clause covering both income and principal.

Freihofer's widow, Hazel, married Ross D. Miller who at the present time is president of the Freihofer Baking Company and the voting trustee of the hereinafter mentioned voting trust. On March 22, 1946, Mrs. Miller, as executrix, and on March 22, 1956, Mrs. Miller, as testamentary trustee, entered into a 10 year voting trust agreement which included the Freihofer Estate's holdings of 10,698 shares of the Freihofer Baking Company and 1605 additional shares owned by another person or persons. This was done without the knowledge or approval of the Orphans' Court and was unauthorized and illegal.

In 1947 an executors' account was filed in the Orphans' Court. It showed, erroneously and falsely, that the Estate had assets of 10,698 shares of stock of the Freihofer Baking Company, whereas in fact it held ...


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