Grady's Estate

34 Pa. D. & C. 143, 1938 Pa. Dist. & Cnty. Dec. LEXIS 200

• Court: Pennsylvania Orphans' Court, Philadelphia County
• Decided: December 16, 1938
• Docket: no. 756
• Status: Published

Opinion

Bolger, J.,

Exceptant seeks to distinguish the facts here from those in the cases cited by the learned auditing judge. He emphasizes the word “prudent” in the will as indicating one such distinction. As stated in what is probably the earliest authority in the State, Erisman, Trustee, v. Directors of the Poor, etc., 47 Pa. 509, 514:

“His [trustee’s] discretion is but a legal one, and whenever the law determines that a proper case has arisen in which the trustee’s discretion should have been exercised in a particular way, he will be constrained to act in accordance therewith.”

The auditing judge’s findings of fact that this is such a proper case is amply supported by the record and we are not inclined to disturb it. See also Stewart et al. v. Madden, 153 Pa. 445.

After careful consideration we are of the opinion that the learned auditing judge has applied the appropriate principles of law as laid down in the cited authorities.

The exceptions are therefore dismissed, and the adjudication is confirmed absolutely.