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ESTATE ETHEL SCHWENK (03/16/84)

filed: March 16, 1984.

ESTATE OF ETHEL SCHWENK, DECEASED. APPEAL OF FRANK L. FISHER AND ELIZABETH S. WIEST, EXCEPTANTS


No. 794 Philadelphia 1983, Appeal from the Decree of February 22, 1983 in the Court of Common Pleas of Philadelphia County, Orphans Division, at No. 3476 of 1949.

COUNSEL

Fred J. Wiest, Jr., Pottsville, for appellants.

Morris R. Brooke, Philadelphia, for appellee.

Spaeth, President Judge and Brosky and Hoffman, JJ.

Author: Hoffman

[ 326 Pa. Super. Page 255]

The sole issue on appeal is whether the trustee's fees at issue are to be paid out of the principal or the income of a trust created under the testatrix's will. Because we find that the trustee's fees were properly charged against the principal, we affirm the order of the court below.

On June 6, 1949, the testatrix, Ethel K. Schwenk, died leaving a will dated August 28, 1947. Testatrix bequeathed her residuary estate to the Girard Trust Company (now, Girard Bank), in trust, to pay the net income to her sister, Gertrude T. Kauffman, for life, and, upon her sister's death, to distribute the principal, in equal shares, to the surviving children of the sisters of testatrix's deceased husband. Prior to the execution of the will, Girard had sent a letter dated August 8, 1947, to the testatrix, which provided in relevant part as follows:

Dear Mrs. Schwenk:

Since you have decided to confide to our Company the future administration of your estate affairs, we take this occasion to express our sincere appreciation and to assure you that we will do everything in our power to carry out your wishes faithfully and efficiently.

As our services will extend over a period of years in the future commencing at some now indeterminate date and will of necessity be subject to circumstances and conditions not now foreseeable, we believe that the following arrangement as to compensation is sufficiently flexible to meet changing conditions and will avoid injustice either to your beneficiaries or to ourselves.

To record the understanding between us as to the compensation to be paid us for such services as we may be called upon to render either as Executor of your last Will or as Trustee of any trusts arising thereunder or under any Deed of Trust executed by you, we propose that our compensation shall be in accordance with the

[ 326 Pa. Super. Page 256]

"Standard Fee Schedule for Personal Trust Services" adopted by our Board of Managers and in effect at the time when we commence to perform ...


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