No. 524 January Term, 1976, Appeal from the Decree of the Court of Common Pleas of Berks County, Pennsylvania, Orphans' Court Division at No. 6-71-158.
J. Kitridge Fegley, Aaron A. Brumbach, Reading, for appellant.
Rhoda, Stoudt & Bradley, D. Frederick Muth, Reading, for appellees, National Central Bank, etc.
O'Brien, Roberts, Pomeroy, Nix, and Larsen, JJ. Eagen, C. J., and Manderino, J., did not participate in the consideration or decision of this case.
We are required by this appeal to determine the propriety of a decree removing appellant as a co-trustee of a testamentary trust created under the will of her mother. Appellant argues that the lower court abused its discretion in terminating her office. We agree and will reverse.
Mary A. Croessant, the testatrix, died on February 3, 1971. By her last will and testament dated October 23, 1969, she appointed her daughter, Virginia Croessant Rudolph, the
appellant, as executrix of her will. In a separate provision, the testatrix appointed appellant and the Reading Trust Company, now the National Central Bank, appellee herein, as trustees of two trusts created by the will. The first of these, denominated a "Trust for Valerie Lynne Rudolph" (daughter of appellant and granddaughter of testatrix), provides for monthly payments of income and distributions of portions of the principal to Valerie upon her attaining ages 30, 45 and 60, respectively, at which latter time the trust shall terminate. The second trust consists of the residue of the estate. The will provides for monthly payments of $100 out of income to each of the two sisters of testatrix for their respective lives; the balance of income is to be paid to appellant in monthly installments during her lifetime. She is also given a right to invade principal to the extent that the trustees find necessary from time to time for the "support, maintenance, medical care and nursing care of my said daughter" (appellant).*fn1 The will further directs that so long as Virginia Croessant Rudolph lives, the corporate co-trustee shall be guided solely by her written advice as to investment or reinvestment of the trust principal, and shall not be liable for any loss occasioned by such reliance.
Letters testamentary were issued to the appellant on February 16, 1971. Little action was taken to administer the estate, however, and on January 5, 1975 appellant was removed, without objection, as executrix on petition of National Central Bank. The bank and appellant's daughter Valerie were appointed "succeeding executors" by the Register of Wills, having been named as such in the will. Premised upon her actions, or lack thereof, with respect to the administration of the estate, the bank, on September 5, 1975, petitioned the court for removal of appellant as cotrustee under the will. Following an evidentiary hearing,
the orphans' court ordered appellant removed as trustee. It also decreed that appellee-bank be relieved of the testamentary directive that it comply with appellant's written instructions concerning the investment of the trust property. Exceptions ...