No. 143 March Term, 1977, Appeal from Decree of Court of Common Pleas of Washington County, Orphans' Court Division, at No. 63-73-1032
Wray Grayson Zelt, III, Washington, Joseph P. Klock, Jr., Steel, Hector & Davis, Miami, Florida, for appellant.
Robert F. Patton, James W. Ummer, Buchanan, Ingersoll, Rodewald, Kyle & Buerger, Pittsburgh, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Manderino, J., filed a dissenting opinion.
Upon the death of his maternal grandmother, Anne Baker Weimer, on February 11, 1975, appellant, J. Duncan Kniseley, became entitled to receive one half of the corpus of a trust established by Anne A. Duncan, known as the "Baker Trust."*fn1 On August 19, 1975, appellee, the Union National Bank of Pittsburgh (the bank), sole trustee since the death of Mrs. Weimer,*fn2 filed in the Court of Common Pleas of Washington County, Orphans' Court Division, its third and partial account in which it charged against appellant's share of the corpus as compensation for its services the sum of $17,045. Appellant objected that this amount was in excess of the amount which the bank had agreed to charge against corpus when the trust was created. After an evidentiary hearing on the matter, the auditing judge confirmed the amount requested by the bank and subsequently dismissed appellant's exceptions and made his decree final. This appeal followed.
The record reveals that on July 17, 1935, John W. Thompson, then vice-president of the bank, wrote a letter to Walter H. Baker, the husband of the settlor's daughter and the proposed co-trustee of two trusts Anne A. Duncan planned to establish, outlining his understanding of the proposed trusts. In that letter he indicated that if the bank were named corporate trustee its compensation "upon corpus at termination" would be 2% in the "Duncan Trust," not here involved, and 3% in the "Baker Trust," involved instantly. He further noted that "the additional charge upon corpus in the Baker Trust is made on account of the greater length of time it will operate."
On August 14, 1935, however, Mr. Thompson wrote another letter to Mr. Baker, which stated the following:
"Confirming my conversation with you today herewith schedule of compensation to be paid The Union National Bank of Pittsburgh during the continuance of the Baker and Duncan Trusts: --
(1) Securities made up largely of family owned securities with a co-trustee -- 2% upon income.
(2) When and if sale of family owned securities is made and funds reinvested in approved investments for the trust with a co-trustee -- 3% upon income.
(3) In the event that all co-trustees named should not act and the entire responsibility devolves upon the bank as sole ...