No. 88 March Term, 1979, Appeal from the Decree Entered May 16, 1979, of the Court of Common Pleas of Westmoreland County, Orphans' Court Division, Nos. 65-76-1698 and 65-76-1699.
David W. Cook, James R. Gaut, John W. Pollins, III, Hammer & Pollins, Greensberg (Sp. Counsel), for appellant.
Dominic Ciarimboli, Ralph Conrad, Greensburg, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ.
The Scottdale Bank & Trust Company, trustee, appeals from the denial of certain compensation for the administration of two trusts. The orphans' court refused compensation on the ground that appellant had waived its right to the disputed fees. Careful review convinces us that the record cannot support the orphans' court's conclusion and accordingly we reverse.
The present litigation began in October 1976 when appellee Lucile Keister Lindstrom filed four petitions in the Court of Common Pleas of Westmoreland County, Orphans' Court Division, challenging the administration of four separate
trusts and estates of which she is a beneficiary.*fn1 The question of compensation now before this Court arises from two of these petitions.
Petition No. 65-76-1699 concerned an inter vivos trust established in 1938 by Lucile's aunt, LaVerne Ischy, and Lucile's father, Donald Keister.*fn2 By the terms of the trust instrument the Scottdale Bank & Trust Company (hereafter Bank) succeeded Lucile's father as sole trustee upon his death in 1964.*fn3 In this petition Lucile alleged that she had only an illegible copy of the trust instrument and that her requests of the Bank for a certified copy of the trust instrument and for an accounting of the administration of the trust had all been denied. The petition prayed that the orphans' court issue to the Bank a rule to show cause why it should not provide Lucile with a certified copy of the trust
instrument and with a complete accounting of the administration of the trust and why it should not be removed as trustee.
Petition No. 65-76-1698 concerned a testamentary trust established by the will of LaVerne Ischy.*fn4 This trust was established in 1961 and the Bank has been sole trustee at least since the death of appellee's father in 1964. In this petition Lucile alleged that, despite repeated requests, the Bank had failed to file any accounting of the administration of the trust and that petitioner had incomplete knowledge of trust assets. In addition, Lucile alleged that her sister Marilyn Keister Kiefer, who is also a beneficiary of the trust, and her sister's husband, Raymond E. Kiefer, who is president of the Bank, were exercising control over the Bank to appellee's detriment. See note 1, supra. This petition also sought a rule to show cause why the Bank should not file a complete accounting and why it should not be removed as trustee.
A rule to show cause was granted on both petitions in November 1976. In December the Bank, through its president Raymond E. Kiefer, ...