No. 227 January Term, 1977, Appeal from Decree of December 6, 1976, of the Orphans' Court Division, Court of Common Pleas of Montgomery County, No. 61872.
Paul Baker Bartle, High, Swartz, Roberts & Seidel, Norristown, for appellant.
Julius La Rocca, in pro per.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ.
In 1954 Joe La Rocca created an inter vivos trust for the benefit of his grandson Julius La Rocca. The trust deed provided that Julius was to receive all the income from certain real property in Montgomery County until he reached the age of twenty-one, at which time he would receive the trust principal.
In 1963 this Court rejected Joe La Rocca's claim that despite the express terms of the trust he intended to retain for himself the trust income until his grandson reached the age of twenty-one. La Rocca Trust, 411 Pa. 633, 193 A.2d 409 (1963). Thereafter, in 1965, this Court surcharged Joe La Rocca for income which he improperly retained since September 30, 1963. La Rocca Trust, 419 Pa. 176, 213 A.2d 666 (1965). A later appeal involved a separate question of counsel fees to the attorney representing the guardian of Julius La Rocca. La Rocca Estate, 431 Pa. 542, 246 A.2d 337 (1968).
The present appeal is by Joe La Rocca, settlor-trustee, and the Industrial Valley Bank ("IVB"), a co-trustee since 1964, from the en banc decree of the Orphans' Court of Montgomery County denying the exceptions to the adjudication confirming the trust account.
In its adjudication the auditing court sustained an objection by Julius La Rocca that the trustees acted improperly in continuing to employ a rental agent after the appointment in 1964 of IVB as co-trustee. The auditing court held that IVB should have assumed this role and accordingly surcharged both trustees in the sum of $1,663.45 which had been paid in commissions to the rental agent. Eight more objections were dismissed. Decision on the beneficiary's first objection, however, was expressly withheld. This as yet undecided objection questioned the delay in paying the surcharge ordered by this Court in 1965. The beneficiary claimed that interest is owing on this surcharge for the period between September 30, 1963, the date upon which the surcharged amount became due, and January 5, 1967, when the surcharge was finally paid. In reversing decision on this claim, the adjudicating court directed the trustees to file accounts "even if . . . [the] accounting shows only a 'nothing-nothing' account so far as its receipts and expenditures were concerned during that period."
The trustees filed exceptions to the adjudication claiming that the auditing court erred both in surcharging the trustees for commissions paid to the rental agent and in directing any further accounting. The orphans' court en banc overruled the exceptions and the trustees filed this appeal. The trustees now challenge the surcharge and the direction to account for the period from September 30, 1963, to January 5, 1967. We affirm.
The auditing court found that after IVB was appointed as co-trustee in 1964 the employment of a rental agent to collect rentals from the trust property was unnecessary ...