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SYLVIA KEHOE v. HAZEL E. GILROY (10/07/83)

filed: October 7, 1983.

SYLVIA KEHOE, JOHN KEHOE III, AND SYLVIA ANN MACK, APPELLANTS,
v.
HAZEL E. GILROY, EXECUTRIX OF THE ESTATE OF EDMUND P. GILROY, TRUSTEE, AND THE AMERICAN CASUALTY COMPANY OF READING PENNSYLVANIA



No. 524 Philadelphia 1982, Appeal from the Order in the Court of Common Pleas of Luzerne County, Orphans, No. 5 of 1977 TIV 185 of 1964

COUNSEL

James R. Anzalone, Wilkes-Barre, for appellants.

Blase L. Gavlick, Philadelphia, for Gilroy, appellee.

Enid W. Harris, Wilkes-Barre, for The Amer. Cas., appellee.

Spaeth, Wieand and Hoffman, JJ.

Author: Spaeth

[ 320 Pa. Super. Page 208]

This is an appeal from an order sustaining preliminary objections in the nature of a demurrer and dismissing appellants' complaint in equity on the ground that appellants were guilty of laches. Since we find that the record does not disclose laches, we reverse.

On May 10, 1944, Frank M. Kehoe executed an irrevocable deed of trust, naming John C. Kehoe, Jr., trustee. Early in 1964, John Kehoe resigned as trustee and the First National Bank of Pittston was appointed successor trustee, but it too resigned, and on November 25, 1964, Edmund P. Gilroy was appointed successor trustee. On December 3, 1964, Gilroy and the American Casualty Company of Reading, Pennsylvania, posted a $50,000 bond for the faithful performance of the terms of the trust, and on December 11, 1964, Gilroy acknowledged the receipt of the sum of $37,735.53 as the balance of the trust principal.

The deed of trust directed that income was to be paid to Frank Kehoe during his life and after his death to his wife, Sylvia Kehoe, during her life, and after her death, principal to be paid to her children, John Kehoe, III, and Sylvia Ann Mack.

[ 320 Pa. Super. Page 209]

On July 1, 1969, Edmund Gilroy, the trustee, died, and letters testamentary were issued to his wife, Hazel E. Gilroy. On January 10, 1975, Frank Kehoe, the settlor, died. On January 24, 1977, Sylvia Kehoe, John Kehoe, III, and Sylvia Ann Mack brought this action in equity against Hazel Gilroy, as Edmund Gilroy's executrix, and American Casualty Company, as surety on the bond for Edmund Gilroy's performance as trustee. We shall have occasion to quote the complaint in a moment. Stated generally, it alleges: the terms and history of the trust; that Sylvia Kehoe has received no income since the death of her husband, Frank Kehoe, the settlor; that Edmund Gilroy, Hazel Gilroy's decedent, failed to perform his obligations as trustee; and that the American Casualty Company has failed to perform its obligations under its bond for Edmund Gilroy's performance. The complaint requests an accounting and distribution.

As defendants, Hazel Gilroy and American Casualty Company each filed preliminary objections. Each set of preliminary objections raised a question of jurisdiction. In its opinion the trial court states that this question has been settled by transferring the action to the Orphans' Court Division, and on this appeal the trial court's jurisdiction has not been questioned.

Hazel Gilroy's preliminary objections include, in addition to a petition raising a question of jurisdiction, a demurrer alleging that the complaint "sounds in assumpsit" and is "barred by the passage of six (6) years from the date of death of Edmund P. Gilroy." American Casualty Company's preliminary objections include, in addition to a petition raising a question of jurisdiction, a demurrer alleging five grounds: plaintiffs "are guilty of laches"; the action "is barred by the applicable Statute of Limitations"; the trust instrument by its terms "relieves the trustee of any duty to account"; ...


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