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ESTATE JOSEPH HENRY ZERBEY (10/05/78)

decided: October 5, 1978.

ESTATE OF JOSEPH HENRY ZERBEY, DECEASED. APPEAL OF ALICE J. JONES, SUBSTITUTE APPELLANT AT NO. 445. APPEAL OF MILDRED ZERBEY LAZARUS, JOHANNE ZERBEY MARTZ, MARGARETTA LAZARUS PADUCH AND UZAL H. MARTZ, JR., BENEFICIARIES UNDER THE WILL OF JOSEPH HENRY ZERBEY, DECEASED


Nos. 445 & 458 January Term, 1977, Appeal from Decrees entered April 18, 1977 in Orphans' Court Division of Common Pleas of Schuylkill County, Dismissing Exceptions to Decree of March 8, 1976 and Denying Petitions for Change of Venue.

COUNSEL

A. Grant Sprecher, Walter E. Nelson, Jr., Philadelphia, for appellants at No. 458 and appellees at No. 445.

William J. Krencewicz, Shenandoah, for appellee, Elizabeth Zerbey Martz.

J. Brooke Aker, Norristown, for appellee, Malcolm D. Reeves, Guardian Trustee ad litem.

John B. McGurl, Jr., Pottsville, for appellees at Nos. 445 and 458.

James D. Crawford, Philadelphia, for appellee at No. 458.

Nix, Justice. Roberts, J., filed a concurring opinion. Manderino, J., concurred in the result.

Author: Nix

[ 481 Pa. Page 376]

OPINION

These appeals are by the surviving trustees and by some of the trust beneficiaries from the denial of a change of venue and from the appointment of successor trustees by the Schuylkill County Court of Common Pleas, Orphans' Court Division. We have jurisdiction pursuant to 42 Pa.C.S. ยง 722(3) (1977). We affirm the lower court.

Joseph Henry Zerbey died in 1933 and by will created three trusts. Each trust was to have the same four trustees. The primary trust was the Newspaper Trust which holds as its principal asset 5960 of the 6000 issued and outstanding voting common shares in J. H. Zerbey Newspapers, Inc., publisher of the Pottsville Republican newspaper. This trust will continue until the testator's last surviving child dies at which time the corpus will be distributed to testator's then living grandchildren, if any, or to testator's heirs. Testator was survived by four children of which two daughters, Elizabeth Zerbey Martz (appellee) and Mildred Zerbey Lazarus (appellant) are still living.

The twelfth clause of testator's will established the mechanism for the appointment of successor trustees:

"TWELFTH: I order and direct that the President Judge of the Orphans' Court of Schuylkill County shall appoint any vacancies which may exist by death, resignation or otherwise, in the number of my trustees or executors, it being my intent that there should at all times be the same number of trustees and executors. The said appointment shall be made upon the petition of the surviving trustees or executors or any of them."

Two trustees died in the fall of 1975. The two surviving trustees petitioned the lower court for the appointment of successor trustees pursuant to the twelfth clause of the will. The surviving trustees nominated Nadine F. Oswald ...


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