In re Card's Estate

CourtUnited States State Supreme Court of Pennsylvania
Writing for the CourtBARNES, Justice
Citation9 A.2d 557
PartiesIn re CARD'S ESTATE. Appeals of MOORE et al.
Decision Date27 November 1939
9 A.2d 557

In re CARD'S ESTATE.
Appeals of MOORE et al.

Supreme Court of Pennsylvania.

Nov. 27, 1939.


9 A.2d 558

Appeals Nos. 247, 248, 256, March term, 1939, from decree of Orphans' Court, Allegheny County, at No. 7558 of 1938; Thomas P. Trimble, H. Walton Mitchell, and Edward C. Chalfant, Judges.

Proceeding in the matter of the estate of William W. Card, deceased. From a decree of the Orphans' Court dismissing exceptions to the trustee's claim for compensation, William Card Moore, Harriet M. Linder and Sada Tracy Card appeal.

Reversed and remanded.

Argued before KEPHART, C. J., and SCHAFFER, MAXEY, LINN, STERN, and BARNES, JJ.

C. L. Wallace, Robert R. Wertz, Weller, Wicks & Wallace, and John O. Wicks, all of Pittsburgh, for William Card Moore and Harriet M. Linder.

Smith, Buchanan & Ingersoll, A. P. Weitzel, Donald L. McCaskey, and William K. Unverzagt, all of Pittsburgh, for Sada Tracy Card.

Lawrence P. Monahan, of Pittsburgh, for appellee.

BARNES, Justice.

William W. Card died on April 14, 1903, leaving a will in which he named the Safe Deposit and Trust Company of Pittsburgh, now the Peoples-Pittsburgh Trust Company as sole executor and trustee. In Card's Estate, No. 1, Pa.Sup., 9 A.2d 552 (opinion filed this day) there is involved the construction of the dispositive provisions of the will. In these three appeals there is in controversy the amount of compensation claimed by the trustee, and awarded to it by the court below. Exceptions were filed by the appellants and other beneficiaries of the trust estate, to the adjudication of the auditing judge confirming the account of the trustee, and ordering that distribution be made. From the final decree dismissing exceptions the appeals to this Court have been taken.

The executor's first and final account was filed in 1904, and thereafter by decree of distribution entered in May 1904 the residuary estate of the testator (having an appraised value of $1,163,487.68) was awarded to the trustee for the purposes set forth in the will. The present account of the trustee, filed December 2, 1938, is the first one rendered since the inception of the trust,—a period over thirty-four years. During the entire time, the trustee rendered quarterly statements of account to the income beneficiaries named in the will, retaining as compensation for its services, a commission of two per cent upon the income of the trust estate, without any indication whatsoever that such compensation was a partial one, or that a claim for additional commission on income would be made.

Upon the audit of the present account the trustee claimed an added one per cent of all income which it had received and distributed since assuming the trust in 1904. Its vice-president and trust officer, Mr. Price, testified that there was no thought of charging more than the two per cent commission until the present account was in process of preparation, when it was determined that this compensation was inadequate for the duties performed, and the responsibility assumed under the trust. It was then decided to present a claim for the additional amount.

Moreover the trust officer stated that the present effort to obtain such additional compensation would not have been made, except for the fact that the trustee had withheld from income beneficiaries certain shares of the Westinghouse Air Brake Company, received as stock dividends, which are now on hand, and furnish an available fund for the extra remuneration claimed. He testified:

"Q. Oh, well, now, if you did not have these stock dividends which you ask to distribute now, would you ask for one per cent and ask that these beneficiaries be surcharged? A. No, sir, we would not. * * *

"Q. Did you tell any of these beneficiaries any time prior to the time of filing this account that you were going to charge one per cent additional [on] income? A. No, sir."

9 A.2d 559

Notwithstanding that over the period of the trust five of the original income beneficiaries have died and others, according to the terms of the will, have been substituted in their places, the claim for the additional one per cent is upon the sum of $2,606,860.60, which represents the total income collected since 1904. Thus, the shares of income now distributable to the present beneficiaries are charged with an extra one per cent upon all payments made to deceased beneficiaries.

It is asserted, however, that the testator expressly agreed to the payment of the larger commission. To establish the alleged agreement the trustee placed in evidence a copy of a letter dated June 9, 1902, written by its secretary and treasurer to the testator, the material part of which reads as...

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5 practice notes
  • In re Bard's Estate
    • United States
    • United States State Supreme Court of Pennsylvania
    • May 30, 1940
    ...in the absence of any evidence that they knew its source, or understood its nature. In Card's Estate No. 2, 337 Pa. 82, page 88, 9 A.2d 557, page 560, where a similar situation was before us, we said: 13 A.2d 713 "There was no acquiescence on the part of such beneficiaries, because of ......
  • Duncan Trust, In re
    • United States
    • United States State Supreme Court of Pennsylvania
    • October 5, 1978
    ...waiver presumed from trustee's failure to seek compensation from principal during her lifetime), with Card's Estate (No. 2), 337 Pa. 82, 9 A.2d 557 (1939) (waiver found from 34-year failure to claim additional compensation from...
  • In re Card's Estate
    • United States
    • United States State Supreme Court of Pennsylvania
    • November 27, 1939
    ...in the children or lawful issue of such decedent—a phrase which was apparently intended to denote a vesting in possession as 9 A.2d 557 well as in interest. Moreover, the general plan of the will indicates that the issue in each branch of the family were to be entitled to receive their prop......
  • In re Raymond G. Perelman Charitable Remainder Unitrust, Nos. 151
    • United States
    • Superior Court of Pennsylvania
    • March 17, 2015
    ...claim by the Estate. While a trustee may waive, explicitly or by conduct, her right to compensation, see In re Card's Estate, 337 Pa. 82, 9 A.2d 557, 559 (1939), merely declining to seek compensation is not sufficient to defeat the right at a later time to seek it. Reed, 357 A.2d at 141–42.......
  • Request a trial to view additional results
5 cases
  • In re Bard's Estate
    • United States
    • United States State Supreme Court of Pennsylvania
    • May 30, 1940
    ...in the absence of any evidence that they knew its source, or understood its nature. In Card's Estate No. 2, 337 Pa. 82, page 88, 9 A.2d 557, page 560, where a similar situation was before us, we said: 13 A.2d 713 "There was no acquiescence on the part of such beneficiaries, because of ......
  • Duncan Trust, In re
    • United States
    • United States State Supreme Court of Pennsylvania
    • October 5, 1978
    ...waiver presumed from trustee's failure to seek compensation from principal during her lifetime), with Card's Estate (No. 2), 337 Pa. 82, 9 A.2d 557 (1939) (waiver found from 34-year failure to claim additional compensation from...
  • In re Card's Estate
    • United States
    • United States State Supreme Court of Pennsylvania
    • November 27, 1939
    ...in the children or lawful issue of such decedent—a phrase which was apparently intended to denote a vesting in possession as 9 A.2d 557 well as in interest. Moreover, the general plan of the will indicates that the issue in each branch of the family were to be entitled to receive their prop......
  • In re Raymond G. Perelman Charitable Remainder Unitrust, Nos. 151
    • United States
    • Superior Court of Pennsylvania
    • March 17, 2015
    ...claim by the Estate. While a trustee may waive, explicitly or by conduct, her right to compensation, see In re Card's Estate, 337 Pa. 82, 9 A.2d 557, 559 (1939), merely declining to seek compensation is not sufficient to defeat the right at a later time to seek it. Reed, 357 A.2d at 141–42.......
  • Request a trial to view additional results

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