Appeal from decree of Orphans' Court of Erie County, May T., 1963, No. 244, in re estate of Robert M. Thompson, deceased.
David F. Maxwell, with him Walter J. Collins, Jr., and Obermayer, Rebmann, Maxwell and Hippel, for appellant.
Charles A. Woods, Jr., Deputy Attorney General, with him Eugene J. Brew, Jr., Special Assistant Attorney General, and Edward Friedman, Attorney General, as parens patriae for charitable trusts.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones.
The present appeal is from a decree of the Orphans' Court of Erie County which (a) reduced the claim of appellant-trustee (Lewis S. Mosher), compensation from $25,000 to $20,000 and (b) directed appellant-trustee to recover $40,489.33 of the fee he had paid to the attorneys who had represented him in his fiduciary capacity. Narrowly stated, the issue is whether the auditing judge abused his discretion in reducing the compensation claimed (a) by the fiduciary and (b) by his attorneys.
This is the second appeal involving the will of Robert M. Thompson (testator) to reach this Court. A detailed recital of the facts involving the will and codicil and the extensive litigation ensuing therefrom may be found in our opinion Thompson Will, 416 Pa. 249, 206 A.2d 21 (1965). To avoid unnecessary repetition, we will simply highlight the more important and presently pertinent facts.
Testator died on March 21, 1963, leaving an estate of approximately $700,000 which estate he disposed of by will -- concededly valid -- dated September 16, 1959. The will appointed the present appellant-trustee executor
and gave him the entire estate in trust for distribution "to and amongst such local charities as he shall determine in his sole discretion . . . ." In addition to the above mentioned will, a codicil dated April 26, 1962 was found. This codicil eliminated appellant-trustee from serving in any fiduciary capacity, appointed Bronte Greenwood, Esq., of Philadelphia, in his stead, revoked the residuary clauses of the 1959 will and, in lieu thereof, gave testator's residuary estate "unto [his] loyal and faithful friend, Myra Parkhurst, to be owned outright and in fee by her," and also gave Myra Parkhurst "the power to designate distribution therefrom to and amongst any charitable organizations she may desire and in any amounts she may desire." In addition, the codicil specifically provided "that her conduct in such designation shall not be questioned, nor shall she be required to make any such designation."
Both the 1959 will and the 1963 codicil were probated. Appellant-trustee -- describing his capacity "not as executor but as beneficiary under the nineteenth paragraph [of the will] and as the party having the duty and authority to distribute the bulk of [testator's] estate among Erie charities"*fn1 -- appealed from the probate of the codicil to the Orphans' Court of Erie County. The grounds of this appeal were: (a) at the time the codicil was executed, testator was not of sound mind; (b) the codicil was procured by undue influence. Preliminary objections to the petition challenging Mosher's standing to appeal from probate were sustained. In Thompson Will, supra, we upheld Mosher's standing to appeal and remanded the matter to the Orphans' Court of Erie County for further proceedings to determine the validity of the codicil.
After lengthy discussions, negotiations, and further hearings, the probate appeal was settled by stipulation
of all parties which provided that: (1) $329,490 be paid to Lewis S. Mosher for distribution among the local charities he selected,*fn2 subject however to the prior payment of his "lawful expenses, including counsel fees";*fn3 (2) ...