Browne v. Maxwell

• Decision Date: 07 February 1927
• Docket Number: 165
• Parties: Browne, Appellant, v. Maxwell et al
• Court: Pennsylvania Supreme Court

136 A. 232

288 Pa. 398

Browne, Appellant, v. Maxwell et al

No. 165

Supreme Court of Pennsylvania

February 7, 1927

Argued January 17, 1927

Appeal, No. 165, Jan. T., 1927, by plaintiff, from decree of C.P. No. 4, Phila. Co., March T., 1926, No. 4112, dismissing bill in equity, in case of Helen M. Browne v. Charles T Maxwell and John Maxwell, individually and as trustees under wills of John and Elizabeth Maxwell, et al. Affirmed.

Bill for accounting. Before AUDENRIED, P.J.

The opinion of the Supreme Court states the facts.

Bill dismissed. Plaintiff appealed.

Error assigned was decree, quoting record.

The order appealed from is affirmed at cost of appellant.

William G. Wright, with him Robert P. F. Maxwell, for appellant. -- The orphans' court has no jurisdiction: Goetz's Est. 236 Pa. 630.

The common pleas court has jurisdiction: Jones's App., 3 Grant 169; Ebert's App., 9 Watts 300; Brown's App., 12 Pa. 333; Sager v. Mead, 171 Pa. 349; Innes's Est., 4 Wh. 179.

The corporation is not a necessary party.

C. B. Wagoner, with him J. W. McWilliams and C. S. Wesley, for appellees. -- The orphans' court has exclusive jurisdiction: Hegerman's Est., 28 Pa. Dist. R. 384; Bunce v. Galbrath, 268 Pa. 389; Girard's Est., 48 Pa. C.C.R. 608; Williams's Est., 236 Pa. 259; Schadt's Est., 282 Pa. 523; Engle v. Engle, 21 Luz. 277; Marshall's Est., 138 Pa. 285; Odd Fellows Savings Bank App., 123 Pa. 356; Watts's Est., 158 Pa. 1.

Before MOSCHZISKER, C.J., FRAZER, WALLING, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. CHIEF JUSTICE MOSCHZISKER:

Plaintiff filed a bill in equity averring as follows: that she was a daughter of John Maxwell and Elizabeth Maxwell, his wife, and a beneficiary under their respective wills; her father's will was probated at Philadelphia and letters testamentary were granted thereon to the two first named defendants, Charles T. Maxwell and John S. Maxwell; her mother's will also was probated at Philadelphia and letters thereon were issued to the aforesaid defendants, who duly qualified, and have ever since acted as executors and trustees under both of these wills; plaintiff, the defendants above mentioned, and certain of the decedents' other children and grandchildren (also named as defendants, because they refused, on plaintiff's request, to join in her bill) are all the persons interested in these estates; the will of John Maxwell, deceased, provided that the trustees named by him should hold in trust his stock in a corporation organized and existing under the laws of Pennsylvania, known as the Wilton Hygiene Underwear Knitting Company, having its principal place of business in the County of Philadelphia, and a similar provision as to another block of this stock is contained in the will of Elizabeth Maxwell, deceased; at the deaths of John and Elizabeth Maxwell, and thereafter until about April 16, 1924, the capital stock of the company consisted of 200 shares, par value $50 each, of which 150 shares, belonging to the estate of John Maxwell, are held and controlled by the trustees under his will, 25 shares, belonging to the estate of Elizabeth Maxwell, by the trustees under her will, and the remaining 25 shares are owned, 5 shares each, by plaintiff, the two first named defendants and Jennie H. Finck and Stuart Maxwell, also named as defendants. On April 16, 1924, the corporation issued a stock dividend consisting of 1,000 shares of the par value of $50 each, of which 750 shares are held by the defendants Charles T. Maxwell and John S. Maxwell as trustees under the will of John Maxwell and 125 shares as trustees under the will of Elizabeth Maxwell, and 25 shares each are owned by these two defendants individually and by the three following persons, the plaintiff, Jennie H. Finck and Stuart Maxwell; after the distribution of the other personal estate of the said John Maxwell and Elizabeth Maxwell, deceased, in the year 1908, "the only property, estate or, assets received, held or controlled by defendants Charles T. Maxwell and John S. Maxwell, as trustees," has consisted of "the shares of stock of the Wilton Hygiene Underwear Knitting Company, and the income and profits the result of such ownership"; since April, 1909, "defendants Charles T. Maxwell and John S. Maxwell have annually used their control as trustees of a majority interest in the stock of the said . . . company, being a seven-eighths interest, at the annual meeting of stockholders, . . . to elect themselves as individuals, together with the defendant Jessie M. Bowman, the only directors of said corporation, and, . . . claiming to act as directors of said corporation, together with the said Jessie M. Bowman, have annually elected the said Charles T. Maxwell as president and general manager of said corporation and have fixed and determined his compensation as such."

The bill avers that the salaries thus fixed, and certain additional compensation voted to Charles T. Maxwell, are exorbitant; "that the said Charles T. Maxwell and John S. Maxwell, as trustees under the wills of John Maxwell and Elizabeth Maxwell, have rendered accounts to the Orphans' Court of Philadelphia County in or about the years 1915 and 1923, wherein they accounted only for the dividends on the stock of said Wilton Hygiene Underwear Knitting Company, and on both of said accountings Charles T. Maxwell was awarded and received the usual commissions as [acting] trustee on the sums therein stated to have been received and paid out by him, but on each of said accountings said trustees withheld and concealed the fact of the large payments made to said Charles T. Maxwell under the guise of salary as aforesaid"; and "that the sums secured by the said Charles T. Maxwell by the use of his position as trustee, under the guise of salary and commissions, together with his share (about one-seventh) of the sums distributed by the trustees as income of the trusts, since March 31, 1909, have amounted to more than $50,000 in excess of the total of the amounts received by all of the other beneficiaries under the said wills"; finally, that the corporation has "made profits in excess of the sums declared as dividends which total more than $23,000, but [plaintiff] has been and is unable to ascertain what disposition has been made of said profits."

The bill concludes by averring that, "by virtue of their possession of nearly all of its capital stock, in their capacity as trustees, the said corporation and its business are in truth and...