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ESTATE FRANCES H. CAHEN (TWO CASES) PITTSBURGH NATIONAL BANK (11/18/78)

decided: November 18, 1978.

ESTATE OF FRANCES H. CAHEN (TWO CASES) PITTSBURGH NATIONAL BANK, CO-TRUSTEE UNDER REVOCABLE AGREEMENT DATED 12/28/39, AMENDED 4/18/44 AND SUPPLEMENT DATED 10/5/53 WITH ROBERT ROSENTHAL. APPEAL OF FRANCES H. CAHEN, EXCEPTANT. ESTATE OF PHILLIS H. HELLER, NOW ROSENTHAL, PITTSBURGH NATIONAL BANK, CO-TRUSTEE UNDER REVOCABLE AGREEMENT DATED 12/28/39, AMENDED 4/18/44 AND SUPPLEMENT DATED 10/5/53 WITH ROBERT ROSENTHAL (TWO CASES). APPEAL OF PHILLIS H. HELLER, NOW ROSENTHAL, EXCEPTANT. ESTATE OF RICHARD HELLER (TWO CASES) PITTSBURGH NATIONAL BANK, CO-TRUSTEE UNDER REVOCABLE AGREEMENT DATED 12/28/39, AMENDED 4/18/44 AND SUPPLEMENT DATED 10/5/53 WITH ROBERT ROSENTHAL. APPEAL OF RICHARD HELLER, EXCEPTANT


No. 280 March Term, 1977. No. 281 March Term, 1977. No. 282 March Term, 1977. No. 286 March Term, 1977. No. 287 March Term, 1977. No. 288 March Term, 1977. Appeals from the Decrees of the Orphans' Court Division of the Court of Common Pleas of Alleghany County, at Nos. 2002, 2003 and 2004 of 1949, dated November 18, 1977.

COUNSEL

William McC. Houston, Houston, Houston & Donnelly, Pittsburgh, for appellants at Nos. 280, 281 and 282 and for appellees at Nos. 286, 287 and 288.

Richard B. Tucker, Jr., Tucker, Arensberg & Ferguson, Pittsburgh, for appellant at Nos. 286, 287 and 288 and for appellee at Nos. 280, 281 and 282.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Pomeroy, J., concurs in the result.

Author: Roberts

[ 483 Pa. Page 159]

OPINION OF THE COURT

Pittsburgh National Bank has tendered its resignation as corporate trustee of the on-going Frances Cahen, Phillis Heller, and Richard Heller Trusts. On the audit of Pittsburgh National's First and Transfer Accounts, the Orphans' Court Division of the Court of Common Pleas of Allegheny County entered three decrees awarding Pittsburgh National a total of $27,735 in commissions on principal and $7,500 in counsel fees. We agree with settlors Frances Cahen, Phillis Heller, and Richard Heller that the express terms of their trust agreements with Pittsburgh National preclude the award of principal commissions before termination of the trusts. Accordingly, we vacate that portion of each decree awarding Pittsburgh National principal commissions. But we do not agree that the orphans' court improperly awarded

[ 483 Pa. Page 160]

Pittsburgh National counsel fees and therefore we affirm the decrees in all other respects.*fn1

I

In 1939, settlors entered into separate but substantially identical "trust agreements" with trustees Marcus Aaron and Pittsburgh National.*fn2 Under these trust agreements, Pittsburgh National agreed to administer the trusts settlors simultaneously created.*fn3 Article Twelve of the agreements fixes the corporate trustee's compensation:

"The compensation of [Pittsburgh National], based upon the gross income collected hereunder, shall be three and one-third (3 1/3%) per centum, payable at the time or times the income is disbursed or invested hereunder, and upon the final termination of any trust hereunder, with respect to any part of the principal thereof, [Pittsburgh National] shall be entitled to receive additional compensation for its services hereunder upon the principal then being distributed, the amount of said compensation to be not less than one (1%) per centum nor more than three (3%) per centum of the market value of the securities and other property at

[ 483 Pa. Page 161]

    the time of such distribution. It is further understood and agreed that the amount of said additional compensation for services upon distribution of principal shall be approved by and satisfactory to Marcus Aaron or his successor Trustee appointed as hereinabove set forth."

From 1939 to 1956, Pittsburgh National received commissions on income for its services as corporate trustee. But beginning in 1956, Pittsburgh National attempted to renegotiate Article Twelve and thus increase its compensation. In 1958, following unsuccessful correspondence, Phillip ...


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