Windolph v. Girard Trust Co.
| Decision Date | 18 May 1914 |
| Docket Number | 59 |
| Citation | 91 A. 634,245 Pa. 349 |
| Parties | Windolph, Appellant, v. Girard Trust Company |
| Court | Pennsylvania Supreme Court |
[Copyrighted Material Omitted]
Argued March 27, 1914
Appeal, No. 59, Jan. T., 1914, by plaintiff, from decree of C.P. No. 1, Philadelphia Co., March T., 1912, No. 6651, upon bill in equity in case of William H. Windolph v. Girard Trust Company, Succeeding Trustee under instrument of Annie Windolph, Charles J. Hepburn, Executor of the Will of Annie Windolph, Deceased; George W. Shafer, Administrator of the Estate of Elizabeth Gravell, Deceased; Regna L. Farmer George W. Shafer and Zachary Taylor Shafer. Affirmed.
Bill in equity by surviving husband to have declared void as to him a voluntary deed of trust of personal property made by his wife.
The referee, M. Hampton Todd, Esq., made inter alia the following findings of fact:
The plaintiff, William H. Windolph, and Annie Windolph, the settlor in the deed of trust of July 16, 1909, were married on March 21, 1903, and resided together continuously as husband and wife, until her death on September 28, 1911.
Annie Windolph was survived by her husband and her two brothers, George W. Shafer and Zachary Taylor Shafer.
Elizabeth Gravell, the trustee named in the deed of July 16, 1909, and the mother of Annie Windolph, died September 3, 1911, and letters of administration on her estate were duly granted to her son, George W. Shafer, who is one of the respondents.
On the 16th day of July, 1909, Annie Windolph duly signed, acknowledged and delivered a deed assigning and conveying her interest in the estate of George Crock, deceased, together with certain cash and securities therein specified and enumerated of the value of one hundred and three thousand, five hundred and fifty dollars (103,550) to her mother Elizabeth Gravell, in trust, for the purposes therein set forth. Subsequently under the provisions of the trust Annie Windolph added securities to the value of five thousand dollars to the corpus of the trust fund.
Elizabeth Gravell, the trustee named in said deed of trust, by instrument of writing duly executed by her on July 16, 1909, duly accepted the trust therein and thereby created and agreed to comply with the terms and provisions thereof. At this time Elizabeth Gravell was in her seventy-eighth year and Annie Windolph in the fifty-first year of her age.
On September 19, 1911, the said Annie Windolph, by instrument in writing under her hand and seal, refused to exercise the right reserved to her in the original deed of trust to appoint a successor to Elizabeth Gravell, deceased, as trustee, and consented and agreed that the trust should devolve upon and vest in the Girard Trust Company in accordance with the terms of said deed of trust.
On September 19, 1911, the said Annie Windolph, by instrument in writing under her hand and seal by virtue of the power reserved to her in the original deed of trust, amended the same by increasing the annuity therein given to her husband William H. Windolph from five hundred dollars to nine hundred dollars.
On September 20, 1911, the Girard Trust Company accepted the said trust as provided in the original deed and the amendment thereof and agreed to abide by the terms thereof. The assets of the trust estate were delivered to the Girard Trust Company as succeeding trustee by George W. Shafer, administrator of Elizabeth Gravell, the deceased trustee, in November, 1911.
On October 3, 1911, the will of Annie Windolph, dated September 19, 1911, was duly admitted to probate by the register of wills for the County of Philadelphia and letters testamentary thereon granted to the respondent, Charles J. Hepburn.
By instrument in writing dated and acknowledged the 31st of May, 1912, William H. Windolph duly made and caused to be recorded his election to take against his wife's will and claiming his right to take as her surviving husband under the laws of this State.
In December, 1904, Annie Windolph consulted J. Frank E. Hause, Esq., of the Chester County Bar, in reference to the preparation of a will. Mr. Hause at this time explained to Mrs. Windolph that her husband could take against any will she could make and Mrs. Windolph then expressed the opinion that her husband would be satisfied with whatever disposition she would make of her property.
Early in the year 1908 Charles J. Hepburn, Esq., a member of the Philadelphia Bar, drew a will for Annie Windolph by which a large part of her estate was given to charities. Mr. Hepburn informed Mrs. Windolph that her will could operate only on one-half of her estate unless her husband acquiesced therein. Mrs. Windolph asked Mr. Hepburn's advice whether she could not dispose of her property as she desired. She was advised that she could by deed of trust but to do so she would have to part with the possession and control of her property. This she did not want to do. The subject was discussed several times between Mr. Hepburn and Mrs. Windolph but she was unwilling to part with the possession of her property and consequently no deed of trust was then prepared. In the fall of 1908, Mrs. Windolph being about to go to a hospital to be operated on for appendicitis, sent for Mr. Hepburn and asked him to draw a deed of trust for her along the lines he had theretofore advised. She said she was going under an operation and might die. She was told that a deed of trust drawn under such conditions would not affect her purpose, that she should make a will and take the chance of her husband approving or disapproving it. She replied that she then had a will under which her property would pass to her mother, who knew what she wanted to do with it. She insisted that the deed should be prepared at that time. The deed was prepared and signed at the hospital and also the accompanying schedule. Mrs. Windolph recovered from the operation for appendicitis and returned to her home. This transaction was never fully and finally consummated. Certain moneys in bank accounts to the credit of Annie Windolph were transferred to Elizabeth Gravell, the trustee named in the deed of trust, and the mortgages mentioned in the schedule were assigned and the assignments placed in the hands of Mr. C. J. Hepburn, but they were never recorded nor did Mr. Hepburn ever receive permission to deliver the same. The terms of this deed were not satisfactory to Annie Windolph. In March, 1909, in the presence of Elizabeth Gravell and Annie Windolph and at their instance and request this deed was cancelled by Mr. Hepburn by drawing a line in ink through the signatures. Annie Windolph at this time decided she would make a new deed of trust. In April, 1909, Annie Windolph gave Mr. Hepburn instructions to prepare a new deed of trust, which he did, and the same was duly executed on July 16, 1909, and the securities and other property delivered to Elizabeth Gravell as is hereinbefore set forth. The cash and securities enumerated in the schedule attached to the deed of trust were delivered to the trustee in the following manner:
The cash on deposit in the Girard Trust Company $17,058.16; in the Western Savings Fund $6,005.16; in the Beneficial Savings Fund $17,744.43, and in the Northern Trust Company $16,867.95 stood in the name of Elizabeth Gravell as trustee having been transferred to her credit under the cancelled deed of trust of 1908 were treated as moneys of Annie Windolph turned over by her to Elizabeth Gravell, trustee. No change was made in the deposits as the accounts were in the proper name under the new deed of trust. The deposit account in the Philadelphia Savings Fund Society $6,162.62 was duly transferred on August 2, 1909, and opened in the name of Elizabeth Gravell in trust for Annie Windolph. Cash to the amount of $11.68 was paid to Elizabeth Gravell, trustee. Three mortgages, namely, $3,500 on 2202 West Lehigh avenue; $2,000 on 2034 West Atlantic street, and $2,500 on 5230 Fitzwater street, were carried as cash in the schedule. The mortgages on 2034 West Atlantic street and 5230 Fitzwater street, aggregating $4,500, had been called and upon the receipt of the money from the same it was paid to Elizabeth Gravell, trustee. The mortgage for $3,500 on 2202 West Lehigh avenue had been accepted by Mrs. Windolph prior to the preparation of the schedule and the money for the loan was furnished by Mrs. Windolph and the mortgage taken in the name of Elizabeth Gravell, trustee. The remaining mortgages described in the schedule and aggregating $31,300 were duly assigned to Elizabeth Gravell, trustee, and the assignments recorded. The eight shares of stock in the National Bank of Chester Valley at Coatesville, valued at $400, were duly transferred to Elizabeth Gravell as trustee. The interest and estate of Annie Windolph in the estate of her grandfather, George Crock, mentioned in the schedule, were transferred to Elizabeth Gravell, trustee, by the assignment and conveyance thereof in the deed of trust.
After the delivery of the trust assets to Mrs. Gravell, she invested trust funds in six mortgages, three through Mr. Hepburn, two through Mr. Bishop, of the Girard Trust Company, and one through Mr. McCollum. These mortgages were all submitted to Annie Windolph for her approval before they were accepted by the trustee as investments.
For more than ten years prior to the creation of the trust in question, in the making of mortgage investments, not only Mrs. Gravell but also the brothers of Mrs. Windolph were in the habit of submitting the same to her for her judgment thereon before accepting or rejecting them. There was nothing unusual in Mrs. Gravell as trustee submitting to Mrs Windolph before accepting them, the mortgages taken by the trustee for the investment of trust funds and it was good judgment on her part so to do....
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