John F. Ploeger, Truel & Ploeger, Pittsburgh, Maurice A. Reichman, New York City, for appellant.
Melvin Schwartz, Cooper, Schwartz, Diamond & Reich, Richard B. Tucker, Jr., Tucker, Arensberg & Ferguson, J. Kent Culley, Pittsburgh, for appellees.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.
These consolidated appeals come to us from decrees of distribution of trust assets following an accounting by the trustee,*fn1 and the dismissal of exceptions thereto. Appellants are remaindermen of a series of trusts established by an agreement dated October 9, 1928 between Morris Rosenblum and Fidelity Title and Trust Company, predecessor in interest to Pittsburgh National Bank, appellee. The remaindermen contend that rents from real estate which the trustee treated as an asset of the trusts were erroneously distributed to the life tenants of the trusts. They further allege that they have been denied an adequate opportunity for discovery, and object to the allowance of legal expenses incurred by the trustee as proper charges against the trusts.
The trust agreement of October 9, 1928 established four trusts; one for the benefit of each of the settlor's three children, Herman Rosenblum, Anna R. Reichman and Sarah L. Helfer, and one for the benefit of the settlor's nephew, Morris Goldstein. Each beneficiary was made life tenant of the trust for his or her benefit. The net income from each trust was to be paid to the life tenant during his or her lifetime, and on the death of the life tenant, the corpus was to be distributed free of trust to his or her descendents, per stirpes. Insurance policies on the life of Morris Rosenblum supplied the original corpus of the trusts. The seventeenth paragraph of the trust agreement provides that
"[i]n the event of any increase in the trust fund either by deposit of other policies of insurance or sums of money, or securities, or under the terms of the last will and testament of the Assured, the same shall be held by the Trustee for the benefit of the three children of the Assured, to be held in the following proportions --
Herman H. Rosenblum one-half
Anna R. Reichman one-fourth
Sarah Lucille Helfer one-fourth
and in this proportion any such increase shall be added to and become part of the trust estates hereinbefore set forth for the said children."
On October 10, 1928, the day following execution of the life insurance trust agreement, Morris Rosenblum executed his will. By the Fourth paragraph of the will, he left his furrier business to two of his children, Herman and Anna, and his nephew, Morris Goldstein, to "be held by the Fidelity Title and Trust Company, as trustee, to carry on the said business . . . for a period of not less than twenty (20) years, unless in the meantime the operation of the business shall become unprofitable, in which event it may be terminated at the discretion of my trustee." The fifth and six paragraphs of the will provide as follows:
"FIFTH: I authorize, empower and direct my executor and trustee to mortgage any real estate of which I may die seized in a sum not to exceed Twenty thousand ($20,000.00) Dollars, if in the opinion of my executor and trustee it shall be wise so to do, for the purpose of securing additional capital for the carrying on of my said business, without, ...