Summary
holding that a reserved power "to modify, alter or amend" the trust "in whole or in part" authorized a changing of the beneficiaries
Summary of this case from Rubinson v. RubinsonOpinion
September 30, 1938.
December 5, 1938.
Trusts and trustees — Revocation of trust — Joint powers — Survival — Act of May 3, 1855, P. L. 415.
1. Joint powers, not coupled with an interest, do not survive. [464]
2. The Act of May 3, 1855, P. L. 415, section 2, does not affect such question; it applies to joint trustees, preserving trusts despite the amotion or failure of a trustee. [464]
3. Where a trust inter vivos was created, the income to be paid to settlors' children for life, one-third to each child, reserving to settlors the right to modify the trust during their lifetime; and settlors in writing directed trustee to pay to them the one-third of the income which had been paid to one of the children "until further notice"; and later the father died; a direction by the widow thereafter to restore the interest in the income to the child was of no effect as such, but constituted a gift to the child of his mother's interest, effective as of the date it was executed. [463-4]
4. The letter, which was clear and unambiguous, determined the legal status of the child whose share in the income was to be revoked; and the words "until further notice" meant joint notice of mother and father. [464]
Argued September 30, 1938.
Before KEPHART, C. J., SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.
Appeal, No. 238, March T., 1938, from decree of O. C. Allegheny Co., 1938, No. 1197, in Estate of Max and Amelia Solomon. Decree affirmed.
Audit of account of trust inter vivos. Before TRIMBLE, P. J.
The opinion of the Supreme Court states the facts.
Adjudication filed dismissing exceptions to account. Exceptions to decree nisi dismissed, before TRIMBLE, P. J., MITCHELL and CHALFANT, JJ., opinion by TRIMBLE, P. J. Exceptant appealed.
Errors assigned, among others, were dismissal of exceptions.
Ella Graubart, with her Patterson, Crawford, Arensberg Dunn, for appellant.
John G. Frazer, with him Charles Denby, Jr., T. W. Pomeroy, Jr., and Reed, Smith, Shaw McClay, for trustee, appellee.
Appellant's parents set up an inter vivos trust, the income to be paid to the settlors' three children for life, one-third to each child. It further provided: "The Donors shall have the power, at any time during their lifetime, by an instrument in writing delivered to the Trustee, to modify, alter or amend this agreement in whole or in part; . . ." The settlors, under this agreement, directed the trustee by letter to "pay to us the one-third" of the net income which had been paid to appellant. The trustee complied with this direction. Later the father died, and his widow thereafter directed the trustee to resume payment to appellant. After complying with this direction, the trustee was advised it could not legally pay this income to the son. To an account filed complying therewith, the son filed exceptions which were dismissed. This appeal followed.
It is urged both parents merely wished to punish appellant temporarily, and intended to restore the income to him, but had neglected to do so. The effect of the letter of November 26, 1930, however, was not merely that of a temporary measure to punish the son, so that the income should become his at the death of the father and by direction of the mother. The letter does not so state, and the mother's subsequent explanation will not avoid its operation, under well settled principles. The letter itself determines the legal status of appellant; it is clear and unambiguous. The power to revoke is specifically referred to, and it is indicated clearly that the parents were exercising that very power. The words "until further notice" meant, of course, joint notice of mother and father.
The lower court held that the power to revoke was joint; that it was not coupled with an interest, as the creators of the trust were not beneficiaries, and that the right of survivorship did not exist. The mother's direction to restore the interest in the income to the son was of no effect as such, but constituted a gift to the son of her interest, effective as of the date it was executed.
Joint powers, not coupled with an interest, do not survive. The Act of May 3, 1855, P. L. 415, section 2, does not affect the question: it applies to joint trustees, preserving trusts despite the amotion or failure of a trustee. See Croker v. Croker et al., 192 N.Y. S. 666.
It should not be in the power of either party after the death of the other to destroy the trust both created and both intended to subsist. If we held as appellant suggests that the power survived to the mother, it could be exercised to deprive the other children of their income. No trust jointly created would be secure under such a determination.
Decree affirmed at appellant's costs.