Opinion
December 6, 1939.
January 2, 1940.
Trusts and trustees — Actions — Return of trust funds — Assumpsit or accounting.
In an action of assumpsit, a statement of claim which averred that plaintiff delivered a specified sum of money to defendant bank pursuant to the terms of a receipt, which provided that the money was to be held in trust to pay the net income as specified and that the trust might be terminated and the fund withdrawn at any time upon reasonable notice by plaintiff, and that plaintiff demanded return of the money originally deposited but defendant declined to pay it, was held on appeal not to state a cause of action, since the defendant undertook only to account for the trust property and not to repay the amount deposited.
Mr. Justice SCHAFFER took no part in the decision of this case.
Argued December 6, 1939.
Before KEPHART, C. J., SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.
Appeal, No. 350, Jan. T., 1939, from judgment of C. P. Luzerne Co., Dec. T., 1937, No. 254, in case of Ben Cohen, Executor, v. Miners Bank of Wilkes-Barre.
Judgment affirmed.
Assumpsit.
The opinion of the Supreme Court states the facts.
Affidavit of defense raising question of law sustained, opinion by McLEAN, P. J., and judgment entered for defendant. Plaintiff appealed.
Error assigned was order sustaining question of law in affidavit of defense.
Nathan Hyman, with him Frank L. Pinola, for appellant.
Edward Darling, of Bedford, Waller, Jones Darling, for appellee.
The appeal is from judgment sustaining a statutory demurrer to the statement of claim. The statement is very meager and avers that, "as one of the executors" of testator, on October 3, 1930, he delivered $10,000 to defendant pursuant to the terms of a receipt attached to his statement and on October 4, 1937, demanded the return of that sum and that defendant declined to repay it. The bank acknowledges receiving the money "to be held in trust under the following . . . conditions:
"(1) To pay the net income therefrom to Mrs. Sol Heller c/o Ben Cohen, 86 Riverside Drive, Wilkes-Barre, Pennsylvania, in quarterly installments.
"(2) This trust may be terminated and the fund withdrawn at any time upon reasonable notice by Ben Cohen, Executor."
The learned court below held the obligation of the bank was to account for the trust property, not to return the sum of $10,000 (compare Osterling's Estate, 324 Pa. 167, 170, 188 A. 180), and gave leave to amend; no amendment being filed, the court entered judgment. While we affirm the judgment on the ground that no cause of action is stated, the affirmance is not to be taken as approval of the conduct of the executor, apparently one of two or more executors (paragraph 3 statement of claim), or of the suit without the joinder of all the executors, or the delegation of the power to invest testator's property. These and similar questions are left until, if ever, it becomes necessary to deal with them on a more complete record.
Judgment affirmed.
Mr. Justice SCHAFFER took no part in the decision of this case.