Trust under Will of Minnie F. Cassatt ( 2016 )

J-A11019-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
TRUST UNDER WILL OF MINNIE F. IN THE SUPERIOR COURT OF
CASSATT AS APPOINTED BY ALEXANDER PENNSYLVANIA
J. CASSATT
APPEAL OF: WELLS FARGO BANK, N.A.
No. 1587 EDA 2015
Appeal from the Order Entered April 24, 2015
In the Court of Common Pleas of Montgomery County
Orphans' Court at No(s): 1994-X1352
BEFORE: SHOGAN, J., MUNDY, J., and FITZGERALD, J.*
MEMORANDUM BY MUNDY, J.: FILED JULY 21, 2016
Appellant, Wells Fargo Bank, N.A. (Wells Fargo), appeals from the April
24, 2015 order granting summary judgment in favor of Appellees, Sheila
Cassatt Issenberg and Lydia Cassatt Osgood, in their petition for declaratory
judgment. This ruling confirmed Appellees’ ability, as beneficiaries, to
remove Wells Fargo as the corporate trustee of the trust under will of Minnie
F. Cassatt (Trust) as appointed by Alexander J. Cassatt and to appoint The
Northern Trust Company (Northern Trust) as the successor corporate
trustee. Further, the orphan’s court sua sponte transferred the situs of the
trust to Delaware County. After careful review, we reverse.
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*
Former Justice specially assigned to the Superior Court.
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The orphan’s court summarized the facts and procedural history of this
case as follows.
Minnie Cassatt died May 30, 1954 a resident of
Delaware County, Pennsylvania and her will and
codicil were admitted to probate by the Register of
Wills of Delaware County. The Pennsylvania
Company for Banking and Trusts and Minnie
Cassatt’s two sons, Alexander J. Cassatt and
Anthony D. Cassatt, qualified as Executors under her
will.
Minnie Cassatt left her residuary estate in
separate trusts for the benefit of her two sons,
Alexander J. Cassatt and Anthony D. Cassatt. Under
ITEM FIFTH (A) of Minnie Cassatt’s will, as modified
by her codicil, each son was given the power to
appoint the income and principal of his trust to and
among his issue as he may designate by his will.
Under ITEM THIRTEENTH of Minnie Cassatt’s will, a
majority of the adult beneficiaries who are entitled to
receive income from any trust created under her will
may, at any time and from time to time, in their
discretion, and without assigning any cause
therefore, remove the corporate trustee by a written
instrument delivered to the corporate trustee.
Alexander J. Cassatt (“Alexander”) died April
19, 1985, a resident of Charlestown, South Carolina.
Alexander’s will dated August 29, 1978 and codicils
thereto dated August 29, 1978, May 11, 1984, and
March 30, 1985 were admitted to probate by the
Probate Court of Charlestown County, South
Carolina. Under ITEM FIRST of Alexander’s will, he
exercised the power of appointment that he had over
the separate residuary trust for his benefit under the
will of his mother, Minnie Cassatt, directing that,
after the payment of certain specific bequests, the
balance of the principal of that trust would continue
to be held in trust for his grandchildren and their
issue, by the surviving trustee under Minnie
Cassatt’s will, together with the trustees appointed in
his will for a period to expire twenty (20) years
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following the death of his last surviving child who
was living at the time of Minnie Cassatt’s death. In
his exercise of his power of appointment, Alexander
further directed that the continuing trust for the
benefit of his grandchildren, shall be “subject to all of
the provisions of ITEMS SEVENTH and NINTH [of
Alexander’s will] and with all the powers thereby
conferred.” ITEM SEVENTH of Alexander’s will
contains a spendthrift provision and ITEM NINTH
recites the powers granted to the fiduciaries
appointed under his will. Alexander did not
specifically refer to ITEM THIRTEENTH of Minnie
Cassatt’s will nor did he refer to the power of
beneficiaries under Minnie Cassatt’s will to remove
and replace a corporate trustee, nor did he expressly
provide in his will that the beneficiaries of any trust
created or appointed would have the power to
remove and replace a corporate trustee.
A majority of the current income beneficiaries
of the trust as appointed by Alexander take the
position that they have the authority under ITEM
THIRTEENTH of Minnie Cassatt’s will, to remove and
replace the corporate trustee. In April of 2013, a
majority of the current income beneficiaries executed
a document removing Wells Fargo [] which was then
serving as the corporate trustee as a successor in
interest to the Pennsylvania Company for Banking
and Trusts. A majority of the income beneficiaries
then appointed [] Northern Trust [] as a successor
corporate co-trustee. Wells Fargo has not
recognized its removal and the appointment of []
Northern Trust [] as its successor, asserting that the
provisions of ITEMS THIRTEENTH of Minnie Cassatt’s
will do not apply to the trust as appointed by
Alexander.
[Appellees,] [t]wo of the current income
beneficiaries of the trust[,] filed a Petition for
Declaratory Judgment in the Court of Common Pleas
of Delaware County[.] … Wells Fargo filed
Preliminary Objections to the Delaware County
Petition contending that the Court of Common Pleas
of Montgomery County, Pennsylvania had already
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exercised jurisdiction over the trust as appointed.
[Appellees] then withdrew the Delaware County
petition and filed the instant Petition for Declaratory
Judgement with [the Montgomery County] Orphan’s
Court Division[.] [Appellees] thereafter filed this
Motion for Summary Judgment. Wells Fargo filed a
Cross-Motion for Summary Judgment.
Orphan’s Court Opinion, 4/24/15, at 1-3.
On April 24, 2015, the orphan’s court entered an order granting
Appellees’ motion for summary judgment and transferring the situs of the
trust to Delaware County for all future proceedings. On May 21, 2015, Wells
Fargo filed a timely notice of appeal.1
On appeal, Wells Fargo presents the following issues for our review.
1.a. Is Wells Fargo [], entitled to judgment because
the provision of Minnie Cassatt’s [w]ill permitting
beneficiaries to remove a trustee does not apply to
the trust created by Alexander Cassatt when he
validly and effectively exercised a power of
appointment given to him under Minnie Cassatt’s
[w]ill?
1.b. Are [Appellees] required to comply with the
Uniform Trust Act, 20 Pa.C.S. § 7766, to remove
Wells Fargo [], as a corporate co-trustee?
2. Did the [o]rphans’ [c]ourt improperly transfer the
situs of trust?
Wells Fargo’s Brief at 2.
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1
The orphan’s court did not direct Wells Fargo to file a concise statement of
errors complained of on appeal in accordance with Pennsylvania Rule of
Appellate Procedure 1925(b), and it did not issue a Rule 1925(a) opinion.
The orphan’s court filed an opinion accompanying its April 24, 2015 order
granting summary judgment.
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When reviewing an orphan’s court decree, we defer to the court’s
factual findings that the record supports, but we will reverse if the court’s
legal conclusions are erroneous. In re Estate of Hooper, 80 A.3d 815, 818
(Pa. Super. 2013), appeal denied, 94 A.3d 1009 (Pa. 2014), quoting Estate
of Pendergrass, 26 A.3d 1151, 1153 (Pa. Super. 2011). Further, we apply
the following principles in our review of the entry of summary judgment.
Our standard of review of a grant of summary
judgment requires us to determine whether the trial
court abused its discretion or committed an error of
law. Mee v. Safeco Ins. Co. of America, 908 A.2d
344 (Pa. Super. 2006). Our scope of review is
plenary. Pappas v. Asbel, 768 A.2d 1089, 1095
(Pa. 2001), cert. denied, 536 U.S. 938 (2002). In
reviewing a court’s grant of summary judgment:
[W]e apply the same standard as the trial
court, reviewing all the evidence of record to
determine whether there exists a genuine issue
of material fact. We view the record in the
light most favorable to the non-moving party,
and all doubts as to the existence of a genuine
issue of material fact must be resolved against
the moving party. Only where there is no
genuine issue as to any material fact and it is
clear that the moving party is entitled to a
judgment as a matter of law will summary
judgment be entered. All doubts as to the
existence of a genuine issue of a material fact
must be resolved against the moving party.
Chenot v. A.P. Green Services, Inc., 895 A.2d 55,
61 (Pa. Super. 2006) (internal citations and
quotation marks omitted).
In re Estate of Moskowitz, 115 A.3d 372, 385 (Pa. Super. 2015) (parallel
citations omitted), appeal denied, 130 A.3d 1291 (Pa. 2015).
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In its first issue, Wells Fargo contends that the orphans’ court erred in
granting summary judgment because the thirteenth provision in Minnie’s2
will, permitting the majority of adult beneficiaries to remove the corporate
trustee without cause and without court approval, did not survive
Alexander’s exercise of the power of appointment that Minnie granted him.
Wells Fargo’s Brief at 17. Instead, Wells Fargo asserts that Alexander
created a new trust through the exercise of the power of appointment with
only the terms specified in Alexander’s will and that the new trust did not
have a condition for the removal of the corporate trustee without cause or
without court approval. Wells Fargo’s Brief at 21.
The following principles guide our interpretation of a will or a trust.
It is now hornbook law (1) that the testator’s intent
is the polestar and must prevail; and (2) that his [or
her] intent must be gathered from a consideration of
(a) all the language contained in the four corners of
his [or her] will and (b) his [or her] scheme of
distribution and (c) the circumstances surrounding
him [or her] at the time he [or she] made his [or
her] will and (d) the existing facts; and (3) that
technical rules or canons of construction should be
resorted to only if the language of the will is
ambiguous or conflicting, or the testator’s intent is
for any reason uncertain[.]
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2
Because the parties share a surname, we refer to them by their first
names.
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Estate of Culig v. Appeal of Culig, 134 A.3d 463, 469 (Pa. Super. 2016)
(citation and quotation marks omitted). Accordingly, we set forth the
relevant provisions of Minnie’s will and Alexander’s will.
Minnie’s will, as amended by the first codicil, bequeathed her residuary
estate to three trustees—Alexander, Anthony, and the Pennsylvania
Company for Banking and Trusts—to divide equally into two trusts for the
benefit of Alexander and Anthony. Minnie Cassatt’s First Codicil, 4/15/53, at
1. Minnie’s will directed that Alexander receive the income from one of the
trusts for life, and Anthony receive the income from the other for life. Id.
The thirteenth provision of Minnie’s will provided that the majority of “the
adult beneficiaries then entitled to receive income from any trust hereby
created” could remove the corporate trustee without cause and without court
approval and appoint a successor corporate trustee. Minnie Cassatt’s Will,
4/8/53, at 9. Further, she gave Alexander and Anthony a power of
appointment, as follows in relevant part.
(a) … with power in each of my said sons
(whether dying before or after me) to appoint by will
the income from and/or the principal of his trust as
follows:
… (ii) if one or more descendants of such son shall
be living at his death, he may so appoint only to or
among his descendants (whether then living or
thereafter born), in such shares and for such estates
and upon such trusts as he may designate, except
that he may appoint any part of the income from
such trust to his spouse or to any spouse or spouses
of a deceased descendant or descendants of his, for
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the life of such spouse or spouses or for any shorter
period.
Minnie Cassatt’s First Codicil, 4/15/53, at 1.
Alexander, in the first provision of his will, exercised his power of
appointment over the principal of the trust Minnie’s will created, as follows.
Alexander Cassatt’s Will, 8/29/78, at 1.3
Whereas, by the terms of the Will of my mother,
Minnie F. Cassatt, I am given a special or limited
power of appointment over a portion of her residuary
estate, I hereby exercise said power as follows: I
give and bequeath out of the principal subject to said
power the sum of Five Thousand Dollars ($5,000) to
each of my daughter, CASSANDRA C. CAREY, and
my sons, ROBERT K. CASSATT, 2nd and ALEXANDER
J. CASSATT, JR., who survive me; and the balance of
said principal shall continue to be held by the
surviving Trustee under said Will and the Trustees
herein appointed in Paragraph 6 of this Item FIRST,
in Trust, subject to all the provisions of Items
SEVENTH and NINTH hereof and with all the powers
thereby conferred, until the expiration of a period of
twenty (20) years after the death of that one of my
children who shall have been living at the time of my
mother’s death and who shall outlive the others; and
1. The Trustees shall … pay the net income
equally to my grandchildren who may be living from
time to time to take and receive the same and in the
event of the death of any grandchild prior to the
termination of this Trust his or her share of income
shall be paid to his or her issue, per stirpes.
…
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3
Alexander executed three codicils to his will, but they did not change or
revoke the exercise of the power of appointment and have no bearing on the
issues in this appeal.
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3. Upon the termination of this Trust at the
time hereinabove provided, the Trustees shall divide
the principal into as many equal shares as there shall
be grandchildren of mine then living plus
grandchildren of mine then deceased leaving issue
then living; and the Trustees shall distribute one of
such shares to each of my then living grandchildren
and shall distribute one of such shares, per stirpes,
to the then living issue of each then deceased
grandchild of mine.
…
5. In the event that my descendants should
all become extinct prior to the time hereinabove
fixed for the termination of the Trust, I do not
further exercise said power of appointment, and I
direct that the Will of my mother shall be interpreted
as though I had died intestate, unmarried and
without issue.
6. I appoint FRANCIS J. CAREY and ROBERT
L. RAST to be co-Trustees to act hereunder with
FIRST PENNSYLVANIA BANK N.A., surviving Trustee
under the Trust under Will of Minnie F. Cassatt, but if
either is unable or unwilling for any reason to serve
or to continue to serve as such, or in the event that
there should at any time be no individual co-Trustee
serving thereunder, I appoint to be designated in
writing by the law firm of REED SMITH TOWNSEND &
MUNSON or any successor organization thereto.
Id. at 1-2. The seventh and ninth provisions of Alexander’s will specify a
number of powers that the trustees can exercise “in addition to the general
powers vested in them by law[.]” Id. at 3-6. Alexander’s will did not refer
to the thirteenth provision of Minnie’s will, and its seventh and ninth
provisions did not provide that his beneficiaries could remove the corporate
trustee without cause at any time. See generally id. at 1-7.
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“A power of appointment is a power that enables the donee of the
power to designate recipients of beneficial ownership interests in or powers
of appointment over the appointive property.” RESTATEMENT (THIRD) OF
PROPERTY (Wills & Donative Transfers) § 17.1 (2011); accord 20 Pa.C.S.A.
§ 7703, cmt. Moreover, the donee of a power of appointment must exercise
it by complying with the limits imposed by the donor. In re Estate of
Zucker, 122 A.3d 1112, 1116-1117 (Pa. Super. 2015). In her will, Minnie
created a trust for Alexander for life with a power of appointment for the
remainder of the trust. Minnie, as donor, gave Alexander, as donee, the
power to appoint in his will the income or principal of the trust to his
descendants, his spouse, or a spouse of a deceased descendant, either
outright or in trust.4
In his will, Alexander appointed a portion of the trust principal to his
three children outright and appointed the balance of the trust principal to
three trustees to hold in trust for the benefit of his grandchildren and their
descendants, subject to the seventh and ninth provisions of his will.
Because this appointment complied with the directives that Minnie’s will set
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4
This power of appointment was special, or non-general, because Alexander
could exercise the appointment in favor of only certain specified appointees.
See RESTATEMENT (THIRD) OF PROPERTY (Wills & Donative Transfers) § 19.14
(2011). Further, it was a testamentary power of appointment as Alexander
could exercise the appointment only by his will. See id. § 17.4(b).
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forth, it was a valid exercise of Alexander’s power of appointment. See
Zucker, supra.
Having determined that the exercise of the power of appointment was
proper, we now turn to Well Fargo’s first issue, whether the trust under
Alexander’s will contained the same terms as the trust under Minnie’s will.
The orphan’s court concluded that the power to remove trustees without
cause and without court approval should be read into Alexander’s will
because “the trust remained a trust initially created by Minnie [], not a trust
created by Alexander.” Orphan’s Court Opinion, 4/24/15, at 7. As such, the
trial court reasoned that “the terms of the appointment by Alexander … are
‘read back’ into Minnie[’s] will as though originally appearing there.” Id. at
6. For the reasons discussed below, this legal conclusion was erroneous.
Section 7731 of the Pennsylvania Uniform Trust Act, 20 Pa.C.S.A.
§§ 7701-7790.3, provides that “[a] trust may be created by … written
exercise of a power of appointment in favor of a trustee.” 20 Pa.C.S.A.
§ 7731. The broad scope of the power of appointment in Minnie’s will
permitted, but did not require, Alexander to set up a new trust for his
descendants. Alternatively, he could have ended the trust by appointing the
entire principal outright to his descendants, or appointed the income from
the trust created by Minnie to his descendants. If he appointed the income
from Minnie’s testamentary trust to his descendants, this would not create a
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different trust, and the terms of Minnie’s will and trust would still apply with
the same trustees and trustee removal provision.
In this case, Alexander exercised the power of appointment both to
bequeath outright a portion of the trust principal to his children and to
create a new trust with the remaining principal for the benefit of his
grandchildren and their descendants. In creating a new trust, he named two
attorneys to serve as trustees along with the corporate trustee from the
trust Minnie created for him. As a settlor of a new trust, Alexander was free
to choose a different or no corporate trustee. The fact that he chose the
same corporation then acting as trustee on Minnie’s trust does not
incorporate the terms of Minnie’s testamentary trust into the new trust he
created. The authority to remove trustees from the testamentary trust that
Alexander created, through the exercise of his power of appointment, could
have been governed by terms Alexander specified in his will. However,
Alexander’s will does not contain a provision for the removal of trustees.
Therefore, the default rule in Section 7766 of the Uniform Trust Act applies.
See 20 Pa.C.S.A. § 7766 (providing four grounds upon which a beneficiary
may petition the court to remove a trustee).
Accordingly, we conclude that the orphan’s court erred in granting
summary judgment because there was no term in Alexander’s will permitting
Appellees without cause and without court approval to remove Wells Fargo
as trustee. Further, Appellees did not petition the orphan’s court for the
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removal of Wells Fargo under Section 7766. Thus, Wells Fargo shall remain
as the corporate trustee. However, our decision is without prejudice to
Appellees’ right to petition for the removal of Wells Fargo as trustee, if
appropriate, under Section 7766 after remand.
In its second issue, Wells Fargo contends that the orphan’s court erred
in transferring the situs of the trust sua sponte because the statute
governing situs changes does not authorize the court to act sua sponte.
Wells Fargo’s Brief at 46. In their brief, “Appellees take no position on this
issue.” Appellees’ Brief at 1. “A challenge to the court’s interpretation and
application of a statute raises a question of law. As with all questions of law,
the appellate standard of review is de novo and the appellate scope of
review is plenary.” In re A.B., 987 A.2d 769, 773 (Pa. Super. 2009)
(citations and internal quotation marks omitted), appeal denied, 12 A.3d 369
(Pa. 2010).
Subsection 7708(g) provides the following rule for a change in situs.
(g) Court-directed change in situs.--A court
having jurisdiction of a testamentary or inter vivos
trust, on application of a trustee or any party in
interest, after notice as the court shall direct and
aided if necessary by the report of a master and
after accounting as the court shall require, may
direct, notwithstanding any other provision of this
chapter, that the situs of the trust shall be changed
to any other place within or without this
Commonwealth if the court shall find the change
necessary or desirable for the proper administration
of the trust.
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20 Pa.C.S.A. § 7708(g). Thus, subsection 7708(g) states that an orphan’s
court may change the situs “on application of a trustee or any party in
interest,” after notice to the parties. Id. Here, the orphan’s court was not
presented with an application to change situs. Instead, the orphan’s court
directed the transfer of situs on its own motion in its order granting
summary judgment. Subsection 7708(g) does not authorize such sua
sponte transfer of situs without notice to the parties and an express finding
that the change is “necessary or desirable.” Id. Accordingly, we conclude
the trial court erred in sua sponte directing the change of situs and reverse
that portion of the trial court’s April 24, 2015 order.5
Based on the foregoing, the orphan’s court erred as a matter of law in
granting summary judgment to Appellees based on their contention that the
terms of Minnie’s testamentary trust carried over to the trust Alexander
created through his power of appointment. See Estate of Culig, supra.
Accordingly, we reverse the orphan’s court’s April 24, 2015 order granting
summary judgment and transferring the situs of the trust to Delaware
County. Moreover, the orphan’s court did not dispose of Wells Fargo’s cross-
motion for summary judgment, so we remand for further proceedings in
accordance with this memorandum.
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5
Our decision is without prejudice to the ability of the trustees or Appellees
to petition the orphan’s court for a change in situs in accordance with
Subsection 7708(g).
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Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/21/2016
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