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HORNER v. FIRST PENNSYLVANIA BANKING AND TRUST COMPANY (10/09/63)

October 9, 1963

HORNER
v.
FIRST PENNSYLVANIA BANKING AND TRUST COMPANY, APPELLANT.



Appeal, No. 11, Jan. T., 1964, from order of Court of Common Pleas of Montgomery County, No. 62-10638 of 1962, in case of Albert W. Horner, Roland H. Horner and Lois H. Wein v. The First Pennsylvania Banking and Trust Company. Order reversed.

COUNSEL

William H. S. Wells, with him John B. Nason, III, Thomas S. Weary, and Saul, Ewing, Remick & Saul, for appellant.

Julian W. Barnard, for appellees.

Before Bell, C.j., Musmanno, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Bell

[ 412 Pa. Page 73]

OPINION BY MR. CHIEF JUSTICE BELL

The First Pennsylvania Banking and Trust Company appeals from a final Order of the Court of Common Pleas of Montgomery County dismissing appellant's preliminary objections raising the question of that Court's jurisdiction over the action.

Appellant was testamentary trustee under the will of Adelaide C. Henderson, who died in 1910. By her will she divided her residuary estate into four equal parts. She bequeathed (a) one of these parts to her son George outright and absolutely, and (b) the remaining three parts to appellant, in trust for the lives of three other children, with remainders as therein set

[ 412 Pa. Page 74]

    forth. On the death of the last surviving life tenant of this trust, appellant filed its account as trustee before the Orphans' Court of Philadelphia County. At the audit of the account, the principal question in issue was whether the principal of the trust was payable (a) solely to the then surviving issue of the two life tenants of the trust who had lift issue, or (b) whether the then surviving issue of George were also entitled to a share of such principal.

On December 2, 1960, the auditing Judge filed an adjudication in which he held that the issue of George Henderson were entitled to a third of the principal then distributable and this adjudication was confirmed by the Orphans' Court en banc. However, this Court reversed and decided in Henderson Estate, 405 Pa. 451, 176 A.2d 428, that the issue of George were not entitled to a share of principal. The Orphans' Court of Philadelphia County then ordered distribution to be made pursuant to, and in accordance with, the decision of this Court.

Thereafter appellees, who are the children of one of the life tenants in the trust, brought the present action in assumpsit against the trustee in the Common Pleas Court of Montgomery County and asked damages on the basis of the following averments:

(a) That in the action in the Orphans' Court of Philadelphia County the appellant (the trustee) had improperly employed as its attorney a lawyer who also ...


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