Opinion
September 27, 1934.
November 26, 1934.
Appeals — Review — Determination of question decisive of case — Consideration of other questions — Jurisdiction of orphans' court — Act of June 26, 1931, P. L. 1384.
On appeal from a decree made at the audit of the account of a trustee under a trust inter vivos, the appellate court declined to consider the question whether the form of agreement, if strictly construed, was within the terms of the Act of June 26, 1931, P. L. 1384 (conferring jurisdiction on the orphans' court in the settlement of accounts of trustees with trusts inter vivos), where the main question, relating to the liability of the trustee to make distribution in cash, had been determined, and would control the disposition of the case in an action of assumpsit, especially where it appeared from the testimony of an officer of the corporate trustee that, if the court directed payment in cash of the amount claimed, the cash would be forthcoming.
Argued September 27, 1934.
Before FRAZER, C. J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.
Appeals, Nos. 142-3 and 159, March T., 1934, from decrees of O. C. Allegheny Co., July T., 1933, Nos. 31-2 and 4, by Frank L. Whitty, in re Deed of Trust of Frank L. Whitty; by Frank L. Whitty, in re Deed of Trust of Frank L. Whitty; and by Clara B. Frey, in re Deed of Trust of Clara B. Frey. Decree reversed, record remitted for decree in accord with opinion filed in No. 141, March T., 1934, the preceding case.
Audit of account of trustee. Before CHALFANT, J.
The opinion of the Supreme Court states the facts.
Exceptions by accountant to decree nisi sustained, TRIMBLE, P. J., MITCHELL and CHALFANT, JJ., in opinion by CHALFANT, J., and decree entered distributing balance by participation in investment fund. Settlors of trust appealed.
Errors assigned, inter alia, were final decrees, quoting record.
Elmer L. Kidney, with him Owen S. Cecil, for appellant, Nos. 142 and 143.
James M. McCandless, for appellant, No. 159.
Charles F. C. Arensberg, with him Ella Graubart, of Patterson, Crawford, Arensberg Dunn, for appellee.
Mahlon E. Lewis, of Alter, Wright Barron, for amicus curiae.
These three appeals were argued with No. 141, appeal of Helen D. Roberts, on the supposition, apparently, that the same questions were involved. The main question in the four cases was whether the agreement of the trust company was ultra vires. What has been said in the opinion in the Robert's appeal is conclusive on that subject in these three appeals. Two of them also raised the question whether the forms of agreement, if strictly construed, are within the terms of the Act of June 26, 1931, P. L. 1384, conferring jurisdiction on the orphans' court in the settlement of accounts of trustees with trusts inter vivos. As the main question has been determined and would control the disposition of the cases in actions of assumpsit in the common pleas, we see no reason for specially discussing the question; this is especially true in view of the testimony of the vice-president and trust officer of appellee, who, in the course of his testimony said ". . . . . . but, naturally, if the court directed that this would be paid in cash, the cash would be forthcoming."
Decree reversed, record remitted with instructions in each case to enter decrees in conformity with the opinion this day filed in No. 141, March Term, 1934 [the preceding case].