H. Peter Somers, Raymond T. Cullen, Philadelphia, for appellants.
Arthur C. Dorrance, Jr., Philadelphia, for appellee, First Pennsylvania Bank.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, former C. J., did not participate in the decision of this case.
Appellant Catharine Breyer Van Bomel is the income beneficiary of two inter vivos trusts established by Henry Breyer in August, 1934. Appellant Charlotte Breyer Rodgers is the income beneficiary of three inter vivos trust established by Edith Breyer, two of which were settled in November, 1954, the third in November, 1958. All five trusts are still active. In July, 1974, appellee First Pennsylvania Bank (First Pennsylvania), the trustee of the five trusts, filed accounts in the Orphans' Court Division of the Court of Common Pleas of Montgomery County, seeking compensation from the principal of the five trusts. Appellants challenge the final decrees of the orphans' court awarding $28,850 in interim commissions from principal. Appellants claim that, upon settlement of the trusts, First Pennsylvania entered into fee agreements barring interim commissions. We conclude that a fee agreement bars First Pennsylvania from collecting interim commissions from the principal of the Henry Breyer trusts but that no such agreement bars First Pennsylvania from collecting interim commissions from the principal of the Edith Breyer trusts.
Accordingly, we reverse the decrees affecting the Henry Breyer trust and affirm the decrees affecting the Edith Breyer trusts.*fn1
Upon the creation of the two Henry Breyer trusts in 1934, William David, vice-president of First Pennsylvania, wrote to Henry Breyer concerning the establishment of the trust. In the letter, Mr. David stated:
"This is to advise you in accepting these trusts that our charge for commissions will be 2% on the income as received and 1% on the principal at the termination of the trusts."
Appellant Catharine Breyer Van Bomel argues that this letter constitutes an agreement barring interim commissions from principal.
Appellant Charlotte Breyer Rodgers challenges the decree affecting the 1954 and 1958 trusts. She argues that notations entered upon First Pennsylvania's "docket cards," internal informational forms summarizing the basic characteristics of each of First Pennsylvania's trust accounts, evidence fee agreements barring payment of interim commissions from principal. The docket cards for the 1954 trusts contain the following with regard to commissions:
"COMMISSIONS Principal to be determined upon termination. Income 5%."
The following entry was made on First Pennsylvania's docket card ...