Opinion
March 20, 1940.
April 15, 1940.
Trusts and trustees — Investment — First mortgage on real estate — Mortgage investment pool.
1. An investment by a trustee in a mortgage investment pool, composed entirely of first mortgages, is not contrary to the directions in a will which provides for a bequest to a trustee of a specified sum "to invest and keep invested in First Mortgages on real estate." [192]
2. Dillon's Estate, 324 Pa. 252, held controlling. [192]
Argued March 20, 1940.
Before SCHAFFER, C. J., MAXEY, DREW, LINN, STERN, BARNES and PATTERSON, JJ.
Appeal, No. 57, March T., 1940, from decree of O. C. Allegheny Co., 1939, No. 2280, in Estate of Elizabeth Paul, deceased. Decree affirmed.
Audit of account of trustee. Before MITCHELL, J.
The opinion of the Supreme Court states the facts.
Adjudication filed awarding distribution in kind of participation certificate in mortgage pool and exceptions thereto dismissed in part, before TRIMBLE, P. J., MITCHELL and CHALFANT, JJ., opinion by MITCHELL, J. Exceptant appealed. Errors assigned, among others, related to the action of the court in banc in dismissing exceptions to the adjudication.
Edward G. Bothwell, for appellant.
Robert F. Barnett, of Sterrett, Acheson, Childs Barnett, with him S. Knox Hunter, for appellee.
The Colonial Trust Company filed its first and final account as trustee under a testamentary trust created by the last will of Elizabeth Paul, deceased. Exceptions were filed by Ora Cooper, Administratrix of the Estate of Flora Holmes Hunter, deceased, one of the remaindermen, to the decree which distributed to her participation certificates in a mortgage pool under the Fiduciaries Act of June 7, 1917, P. L. 447, section 49(e) 1. Upon dismissal of the exceptions by the Orphans' Court of Allegheny County, this appeal was taken.
The sole contention of appellant is that the investment by the trustee in 1928 in a mortgage investment fund or pool, composed entirely of first mortgages, is contrary to the directions of the testatrix's will, which provides: "I give and bequeath to the Colonial Trust Company of Pittsburgh, Pa., the sum of Twenty Thousand Dollars, in trust nevertheless, to invest and keep invested in First Mortgages on real estate, in the funded debt of the United States or of the State of Pennsylvania . . ." (Italics added). Dillon's Estate, 324 Pa. 252, is contrary to this argument of appellant, since there the will contained language of similar import and this court sanctioned the investment of the trustee in such fund or pool. That case rules this controversy.
Decree affirmed; appellant to pay the costs.