Estate of Zerbey

392 A.2d 1340, 481 Pa. 374, 1978 Pa. LEXIS 972
CourtSupreme Court of Pennsylvania
DecidedOctober 5, 1978
DocketNo. 445
StatusPublished
Cited by3 cases

This text of 392 A.2d 1340 (Estate of Zerbey) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Estate of Zerbey, 392 A.2d 1340, 481 Pa. 374, 1978 Pa. LEXIS 972 (Pa. 1978).

Opinions

OPINION

NIX, Justice.

These appeals are by the surviving trustees and by some of the trust beneficiaries from the denial of a change of venue and from the appointment of successor trustees by the Schuylkill County Court of Common Pleas, Orphans’ Court Division. We have jurisdiction pursuant to 42 Pa.C.S. § 722(3) (1977). We affirm the lower court.

Joseph Henry Zerbey died in 1933 and by will created three trusts. Each trust was to have the same four trustees. The primary trust was the Newspaper Trust which holds as its principal asset 5960 of the 6000 issued and outstanding voting common shares in J. H. Zerbey Newspapers, Inc., publisher of the Pottsville Republican newspaper. This trust will continue until the testator’s last surviving child dies at which time the corpus will be distributed to testator’s then living grandchildren, if any, or to testator’s heirs. Testator was survived by four children of which two daughters, Elizabeth Zerbey Martz (appellee) and Mildred Zerbey Lazarus (appellant) are still living.

The twelfth clause of testator’s will established the mechanism for the appointment of successor trustees:

“TWELFTH: I order and direct that the President Judge of the Orphans’ Court of Schuylkill County shall appoint any vacancies which may exist by death, resignation or otherwise, in the number of my trustees or executors, it being my intent that there should at all times be the same number of trustees and executors. The said appointment shall be made upon the petition of the surviving trustees or executors or any of them.”

Two trustees died in the fall of 1975. The two surviving trustees petitioned the lower court for the appointment of successor trustees pursuant to the twelfth clause of the will. The surviving trustees nominated Nadine F. Oswald and Margaretta Paduch to succeed the deceased trustees. These [377]*377nominees were opposed by one of testator’s daughters — Elizabeth Zerbey Martz — an income beneficiary of the trust, who asked the court to exercise its discretion to appoint completely independent trustees.

The lower court held hearings on the conflicting positions and on March 8, 1976, the court appointed as successor trustees two individuals who had not been nominated and who had no connection either with the Zerbey family or with the newspaper corporation: Thomas A. Elliott, Jr. and Willis R. Parnell. The court’s order was signed by Orphans’ Division Judge Bowe and by Common Pleas President Judge Curran. The surviving trustees and certain of the beneficiaries filed exceptions and petitions requesting change of venue. The lower court dismissed the preliminary objections on November 8, 1976 and granted all parties full and complete hearings, in November and December, 1976, on their exceptions and petitions for change of venue. By order of April 18, 1977, Judge Bowe and President Judge Curran dismissed the petitions for change of venue as well as appellants’ exceptions, and confirmed the appointments of Messrs. Parnell and Elliott as trustees. Appellants then filed these appeals.

This is not the first time we have been called upon to review the twelfth clause of this will, see Zerbey Estate, 356 Pa. 2, 50 A.2d 681 (1947) (Zerbey I). However, the unification of the Pennsylvania judicial system in 1969 has caused an ambiguity in the will that was not earlier present. While the twelfth clause gives the power to appoint successor trustees to “the President Judge of the Orphans’ Court of Schuylkill County,” as of January 1, 1969, the Orphans’ Court was abolished and became the Orphans’ Court Division of the Court of Common Pleas. See Pa.Const.Schedule to art. 5, § 4 (1969). Additionally, the president judge of the Orphans’ Court became the president judge of the Orphans’ Court Division of the Court of Common Pleas for the remainder of his term. Id., § 5.

It is clear that testator intended that the judge presiding over orphans’ court matters in Schuylkill County [378]*378to be the person who would appoint successor trustees. The title given this person is unimportant as long as he exercises the powers of the president judge of the Orphans’ Court. Thus, the presiding judge or the judge chosen to sit in the Orphans’ Court Division of the Schuylkill County Court of Common Pleas i. e. Judge Bowe, is the successor to the power to appoint trustees granted in the past to the president judge of the Orphans’ Court by the twelfth clause of testator’s will. Our analysis of testator’s intent also leads us to conclude that the participation of Common Pleas Court President Judge Curran in these proceedings was superfluous.

Appellants allege that Judge Bowe’s rejection of their suggested nominees was an abuse of discretion and that there existed sufficient grounds upon which their petition for a change of venue should have been granted. The general rule is that substituted trustees should be selected from among the nominations made by the parties in interest, if the nominees are qualified. Anderton v. Patterson, 363 Pa. 121, 69 A.2d 87 (1949); McCaskey’s Estate, 293 Pa. 497, 143 A. 209 (1928). However, this rule does not apply when the trust agreement contains contrary provisions, such as those in clause twelve of the will before us. Zerbey I, supra; Stolzenbach’s Estate, 346 Pa. 74, 29 A.2d 6 (1943). In these cases, the exercise of the court’s sound discretion is the criterion for the exercise of its appointive power. See Taylor’s Estate, 320 Pa. 1, 181 A. 482 (1935); McCaskey’s Estate, supra. This is especially true where, as here, the trust agreement has expressly committed the appointive power to the Orphans’ Court.

Appellants contend that past decisions of this Court and a settlement agreement approved by the Orphans’ Court on March 18,1968, compelled Judge Bowe to appoint as successor trustees members of the Zerbey family or employees of the newspaper. Thus they contend that Judge Bowe’s refusal to appoint one of the grandchildren of testator and an employee of The Republican was error. The basic premise upon which appellants have built this argument is without support.

[379]*379First, the twelfth clause does not contain even a hint that such was the intent of the testator. Second, in Zerbey I, supra, it was stated that the testator did not require the court to “appoint the persons nominated by the trustees; the final decision as to who is to be appointed lies with the President Judge of the Orphans’ Court.” Zerbey I, supra, 356 Pa. at 7, 50 A.2d at 683. Nor does the 1968 settlement agreement aid appellants’ argument. Paragraph 5(a) of that agreement states that “the parties acknowledge the final responsibility of the Orphans’ Court of Schuylkill County, in the event of a vacancy in the position of trustee, to appoint a successor trustee.” Since the testator failed to place limits upon the class of persons who could be appointed trustee, Judge Bowe did not err in appointing two independent trustees.

The nominees of the surviving trustees and of the appellants to fill the first vacancy were Margaretta Lazarus Paduch or, in the alternative, Johanne Zerbey Martz or Uzal H. Martz, Jr. All three are grandchildren of the testator and beneficiaries of the trust.

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Bluebook (online)
392 A.2d 1340, 481 Pa. 374, 1978 Pa. LEXIS 972, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-zerbey-pa-1978.