Rowland v. Moore

86 A. 1064, 239 Pa. 513, 1913 Pa. LEXIS 601

• Court: Supreme Court of Pennsylvania
• Decided: March 17, 1913
• Docket: Appeal, No. 222
• Status: Published

Opinion

Opinion by

Mr. Justice Mestrezat,

This was an application by the owner of a contingent interest in a trust estate for the appointment of a new trustee to carry out the terms of the deed of trust. The trustee named in the deed died and his immediate successor was relieved of his duties by the parties. While this proceeding was pending and undetermined another trustee was appointed by the donee named in the deed to make the appointment and is now discharging his duties as trustee.

The deed provides that in. case the trustee named therein or any succeeding trustee or trustees of the trust estate shall die or neglect or refuse or become incapable or unfit to act, then as often as. the same may happen Helen Moore (the donee of the power to appoint) or her husband after her death may by a writing under hand and seal duly attested substitute and appoint some other fit person or persons to be trustee or trustees upon the same trust; and in case of default of such appointment then any of the children of Helen Moore over the age of twenty-one years may apply to the Court of Common Pleas of Philadelphia County for the appointment of a trustee.

The reasons assigned in the petition to the court for the appointment of a trustee are that Mrs. Moore refused to appoint a new trustee; that she had collected the rentals of the real estate not yet disposed of and appropriated the same to her personal use; and that in violation of the deed of trust had paid to her husband certain moneys which were lost to the estate. The first reason assigned has been met by the appointment of a trustee during the pendency of these proceedings, and the other reasons are not sufficient to deprive the donee of her right to exercise the power to fill vacancies conferred by the deed. This was not an application for the removal of an incompetent or improper trustee who was mismanaging the estate. The court has ample power under the Act of June 14, 1836, P. L. 628, to protect and preserve a trust estate by the appointment of a trustee or by the discharge of an incompetent trustee who is mismanaging the estate. This application is simply for the appointment of a trustee to carry out the provisions of the trust deed executed by Helen Moore and her husband in 1876. As noted above, the deed of trust made specific provision for filling any vacancy which might occur in the office of trustee and the method therein provided must, if possible, be pursued: 28 Am. & Eng. Ency. of Law 965. The creator of the trust was fully authorized to make such provision in the deed and having done so the appointment of a trustee to fill a vacancy must be made in conformity with such provision. The court is without authority to make the appointment unless the reasons for so doing contained in the Act of 1836 are made to appear. It is not alleged that the party named by Mrs. Moore as trustee to fill the vacancy is an improper or incompetent person for the position. The power conferred by the deed was, therefore, properly exercised by her, and the appointee has the right to discharge the duties in the management of the estate. If at any time the trustee should fail in the performance of his duties any interested party has an ample remedy for the protection of Ms interest by an application to the court under the existing legislation in this State.

The decree of the court below dismissing the petition for the appointment of a trustee is affirmed.