Appeal from decree of Orphans' Court of Delaware County, No. 553 of 1963, in re estate of Theodore K. Gramm, deceased.
Morton J. Sablosky, with him Max W. Gibbs, for appellants.
Symington P. Landreth, with him George S. Saulnier, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy.
On or about May 31, 1946, Christianna K. Gramm established a revocable inter vivos trust with the Provident Tradesmen's Bank and Trust Company (now the Provident Trust Company) in Philadelphia. The terms of the trust bestowed upon her son, Theodore K. Gramm, a general testamentary power of appointment if his death should occur subsequent to that of his mother. Christianna K. Gramm predeceased Theodore K. Gramm without revoking or altering the trust.
On January 15, 1961, Dr. Theodore K. Gramm died, leaving a will which, in Article Sixth, exercised the general power as follows:
"Sixth: All the rest, residue and remainder of my estate, real, personal and mixed, including any estate over which I have power of appointment, having in mind particularly the power of appointment I have under
the Deed of Trust with the Provident Trust Company of Philadelphia dated May 31, 1946, created by my mother, Christianna K. Gramm, I give, devise and bequeath absolutely for life to my wife, Elizabeth M. Gramm, with full power of consumption of the entire principal estate if, in her judgment, her needs require the consumption of the principal . . . If any principal should remain at the time of the death of my wife, Elizabeth M. Gramm, then I give, devise and bequeath any remaining principal to my sister, Ida G. Betelle, absolutely . . .
"It is my desire that for her own protection, my wife create an agency account or trust account with the Provident Trust Company of Philadelphia to handle the investments of this portion of my estate herein given to her . . ."
The accountability of the executrices of the widow life tenant under this power in the light of Sec. 13 of the Estates Act of 1947 (Act of April 24, 1947, P. L. 100, 20 P.S. § 301.13) was considered by this Court in Gramm Estate, 420 Pa. 510, 218 A.2d 342 (1966) in an opinion written by Mr. Justice Jones, and which sets out the facts in detail. The widow had created an inter vivos trust with the proceeds of the appointed property, of which her two nieces, who were also her executrices, were the beneficiaries. The Court, in upholding the decree of the lower court (Van Roden, P. J.) directing the filing of an account, held:
"By operation of law, this life tenant-widow occupied the status of a fiduciary with respect to the property bequeathed; her diversion of such property to a purpose other than that provided by the testator's will was a breach of her ...