Hurley's Estate.

• Court: Pennsylvania District and County Court
• Writing for the Court: Gest, J.
• Citation: 17D.&C.637
• Docket Number: No. 3843 of 1931.
• Decision Date: 09 December 1932
• Parties: Hurley's Estate.

Page 637

17 D.&C. 637

Hurley's Estate.

No. 3843 of 1931.

The Judicial Districts of Pennsylvania.

December 9, 1932.

Practice, O.C. — Minor beneficiaries — Representation at audit — Fiduciaries Act, Sec. 46 (i) — Right to review of adjudication — Virtual representation — Participation by counsel representing both trustee and guardian.

1. Ordinarily, where minor grandchildren of testator, entitled under the terms of a deed of trust, are not represented at the audit, as required by section forty-six (i) of the Fiduciaries Act of 1917, a review of the adjudication or leave to file exceptions thereto nunc pro tunc will be granted in order to afford them an opportunity to be heard.

2. A petition by the subsequently appointed guardian of minor grandchildren, beneficiaries under the terms of testator's will and of a deed of trust executed by him, for review of the adjudication on the trustee's account or for leave to file exceptions thereto will be refused, where it appears that the guardian so appointed, the trustee and the adult grandchildren were all represented by the same counsel, who appeared and participated at the audit.

Trusts — Active or dry trust — Testamentary character — Extent of trustee's duty — Devolution of fund as part of settlor's estate.

3. A deed of trust whereby the donor reserves the right to withdraw any or all of the property held by the trustee, to add or substitute other property, to change the beneficiaries, their shares or the plan of distribution, or to modify, amend or revoke the trust agreement, under which the residue at his death is to be paid to persons named, is testamentary in character and the property held thereunder passes as part of the settlor's estate.

Petition for leave to file exceptions to adjudication nunc pro tunc and petition for review. O.C. Phila. Co.

Before Lamorelle, P.J., and Gest, Henderson, Van Dusen, Stearne and Sinkler, JJ.

Cornelius C. O'Brien, Matthew Randall and Clinton A. Sowers, for exceptant.

M.T. McManus, contra.

GEST, J., December 9, 1932.

In disposing of this case we deem it advisable to relate its history.

Samuel Hurley executed a deed of trust on July 29, 1927, by which he assigned the sum of $20,000 to Continental-Equitable Title and Trust Company, in trust to pay the income to the settlor during his lifetime, and upon his decease to pay over and distribute the trust estate in equal shares among the grandchildren of the settlor, viz., Edward G., Arthur J., Raymond B., Vincent P., Leo R., Richard L. and Samuel J. Hurley. The settlor reserved "the right to withdraw from the operation of the deed any or all of the property held in trust, to add other property, to change the beneficiaries, their shares or the plan of distribution, and to modify, amend, add to or entirely revoke this trust agreement." And the settlor directed the trustee to retain Byron, Longbottom, Pape & O'Brien as its attorneys in connection with the trust agreement.

In his lifetime the settlor withdrew $5000 of the trust fund, and died on November 6, 1931, leaving a widow, Mary Elizabeth Hurley, and a will dated May 25, 1927, with several codicils, the latest being dated May 18, 1931, by which, after sundry bequests, he gave his residuary estate one-half to his widow and one-half to his said seven grandchildren. The executors of the will are Robert J. Byron and Emil J. Schwab.

The surviving widow elected to take against the will.

At the audit of the account of the trustees under the deed the widow claimed that the deed of trust was testamentary in character and that the estate should be awarded to the executors of the will. It further appeared that three of the grandchildren, viz., Raymond B., Vincent P. and Leo R. Hurley were minors and the remaining four grandchildren were of age. A.S. Longbottom, Esq., entered his appearance for the trustee and for the four adult grandchildren, and also for George T. Schieder, guardian of the estates of the three minor grandchildren.

In the petition for distribution it was stated that a petition for the appointment of George T. Schieder as guardian of the estates of the minors was presented therewith. The petition for...