Matter of Mosteller

719 A.2d 1067, 1998 Pa. Super. LEXIS 3276
CourtSuperior Court of Pennsylvania
DecidedOctober 30, 1998
StatusPublished
Cited by5 cases

This text of 719 A.2d 1067 (Matter of Mosteller) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Matter of Mosteller, 719 A.2d 1067, 1998 Pa. Super. LEXIS 3276 (Pa. Ct. App. 1998).

Opinion

HESTER, Senior Judge:

Bruce Gilbert, in his capacity as executor of the estate of Earl Mosteller, appeals the June 26, 1997 order granting in part and denying in part his exceptions to the first and final account of Meridian Trust Company, Appellee. We reverse and remand.

The material facts are not in dispute. Appellant is the nephew of Earl Mosteller. Mr. Mosteller executed two documents that are relevant to our adjudication herein. On August 28, 1989, he executed a living trust, in which he placed his assets. Commonwealth Bank and Trust Company, N.A. (“Commonwealth”) was named trustee of the living trust, over which Mr. Mosteller retained full power to revoke.

On September 19,1989, Mr. Mosteller executed a power of attorney in favor of Commonwealth and Appellant. Among the powers he gave to his attorneys-in-fact included the right to “create a trust and/or make additions to an existing trust for my benefit” and to “engage in and transact in my name all business that they or either of them may think proper.” Reproduced Record (“R.R.”) at 121a, 122a. Finally, he gave his attorneys-in-fact these powers with “[a]ll with the same power to all intents and purposes with the same validity as I could do if personally present.” R.R. at 122a.

On September 9, 1993, Mr. Mosteller was declared incapacitated and Appellant was named one of the co-guardians of his person. Due to the existence of the power of attorney, no guardian of the estate was named. In the meantime, on August 13, 1993, Commonwealth merged into Meridian Bank and ceased to exist. On October 15,1993, Meridian paid counsel fees to its counsel for his attendance at the proceedings regarding Mr. Mosteller’s incapacity. Appellant objected and revoked the trust. Meridian refused to honor the revocation and continued to hold and manage the money, paying fees to itself and to its counsel.

On November 1, 1993, Appellant was notified that Commonwealth no longer existed and that it was transferring its trust powers to Meridian. Appellant then objected both in *1068 person and in writing to the transfer. In addition, on November 11, 1993, he sent another letter stating that he was revoking the trust and that he objected to the payment of counsel fees for the incompetency hearings. Again, Meridian ignored the objection to the transfer of the trust assets to it as well as the revocation of the trust.

On April 2, 1996, Mr. Mosteller died. Appellant qualified as his executor and demanded return of the trust assets. This demand was ignored. Appellee then prepared a first and final account concerning its administration of the assets of the living trust.

Appellant filed objections to the first and final account with respect to the payment of trustee fees and attorney’s fees. He alleged, inter alia, that the trust had been revoked. After a hearing, the orphans’ court denied the objections and confirmed the account. This appeal followed.

On appeal, Appellant maintains that the transfer of the trust assets to Meridian was ineffective in that Commonwealth did not have the power to transfer the trust assets. He also contends that he revoked the trust in November 1993, and had the power to do so by virtue of his power of attorney. We agree with the latter contention and therefore, do not address the former.

Appellee argues that since the power of attorney did not specifically delineate that Appellant had the power to revoke trusts, he did not have the power to do so. The orphans’ court agreed with this contention. However, we believe that the law no longer allows for such a restrictive reading of powers of attorney.

In Estate of Reifsneider, 531 Pa. 19, 610 A.2d 958 (1992), our Supreme Court interpreted a power of attorney and the act applicable to those documents. In that case, the attomeys-in-fact of an incompetent filed an election against the estate of the husband of the incompetent. The estate argued that since the power of attorney under which the attorneys-in-fact were operating did not contain authorization to elect against an estate, the attorneys-in-fact did not have the power to do so. Our Supreme Court disagreed.

The Court first observed that prior to 1974, the law pertaining to powers of attorney was based solely on agency principles applied at common law. One of those principles provided that powers of attorney were construed strictly and that the grant of special powers was not to be enlarged absent clear intent that such enlargement was intended. Another fundamental principle was that the rule of strict construction was not allowed to defeat the purpose of the attorney-in-fact agency.

The Court went on to note the following. Legislation was enacted in 1974 that allowed for the creation of a durable power of attorney and provided that such powers were not revoked upon disability or death. In 1982, the 1974 act was replaced with a new Chapter 56 to the Probate, Estates and Fiduciaries Code, relating to Powers of Attorney. 20 Pa.C.SA. §§ 5601-5607. Section 5601 states that the powers referred to in section 5602(a), in addition to all other powers that may be delegated to an attorney-in-fact, may now be granted lawfully to the attorney-in-fact and that unless the power of attorney provides otherwise, it shall be construed in accordance with Chapter 56. Further, section 5602(a) provides that a principal may by either the inclusion of the language outlined in section 5602(a)(1) or the inclusion of “other language showing a similar intent on the part of the principal,” empower his attorney-in-fact to do the powers enumerated in section 5602(a)(1).

The power of attorney under consideration in Reifsneider did not include specific language stating that the attorneys-in-fact had the power to claim an elective share of the estate of the principal’s deceased spouse. Included among the powers enumerated in section 5602(a)(1) is the power to claim such a share. The Court had to decide whether a principal “wishing to grant one of the powers referred to in section 5602(a) must explicitly identify the power using specific language either identical or similar to the statutory language.” Id., 531 Pa. at 24, 610 A.2d at 961. The Court concluded that the statute does not confine the manner in which powers may be granted. It stated that the powers enumerated in section 5602(a)(1) can be *1069 granted by inclusion of any language showing a similar intent. It also held specifically that general language can show such an intent on the part of the principal.

The Court continued by examining the power of attorney at issue in that case. It concluded that language giving the attorneys-in-fact the power to commence legal proceedings, coupled with general language, empowered the attorneys-in-fact to claim an elective share even though that power was not included by specific language. In that case, the power had the following general language, “to do all other acts, deeds, matters and things whatsoever in or about my estate, property and affairs and things herein either particularly or generally described, as fully and effectually to all intents and purposes as I could in my own proper person.” Id.,

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Cite This Page — Counsel Stack

Bluebook (online)
719 A.2d 1067, 1998 Pa. Super. LEXIS 3276, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-mosteller-pasuperct-1998.