Estate of Nathans

Opinion by

Me. Chief Justice Steeeett,

This appeal is from the decree of the court below dismissing appellant’s petition in a proceeding under the act of April 9, 1868, entitled “ An act to authorize the court of common pleas and orphans’ court of the city of Philadelphia to appoint and remove trustees,” which provides as follows: “ When any trust now exists or is hereafter created, the cestuis que trust, or a majority of them having the life estate, shall have the right to elect or choose trustees to execute said trusts, and upon petition of the cestuis que trust or parties in interest as aforesaid, having such life estate, the court of common pleas or orphans’ court in and for the city of Philadelphia, having jurisdiction, shall remove the acting trustee or trustees, and appoint other or others, as chosen or elected by said parties, who shall have all the powers to execute said trusts, upon security being approved and entered by said appointees as directed by said court appointing them : ” Purd. 2036, pi. 68.

It is evident from a consideration of the purposes of the act, that the unqualified language employed therein was not intended to prohibit the exercise of a sound judicial discretion in administering its provisions. It was accordingly held in Stevenson’s Appeal, 68 Pa. 101, that the act is so far directory as to make it the duty of the court to refuse removals that are prompted by mere caprice on the part of the cestui que trust. In Marsden’s Estate, 166 Pa. 213, in the opinion of the court below, which was adopted by this Court, it is said: “ The power of the court under the act of April 9, 1868, .... is not dependent upon the misconduct of the trustee sought to be superseded; and it is enough to show that his retention, by reason of the existence of hostile relations between him and the cestui que trust, would materially work disadvantage, inconvenience aud great discomfort to the latter.” After referring to reasons assigned by the petitioner for the existence of unpleasant relations between herself and the respondent, founded partly upon a want of harmony between him and his coexecutor, etc., and to what was done with the view of remedying the same, the learned judge of the orphans’ court says: “ These considerations, it is true, do not obscure the fact that the feeling with which the life tenant regards the trustee,—whether it is a prejudice or not, and whether or not it is based upon a reason which proves to be exaggerated,—is deep seated and destructive of mutual confidence between the parties.”

In view of the evidence, and of the expressions contained in the appellants petition, there cannot be any doubt as to the substantial correctness of this conclusion of fact, that her feeling of hostility towards the respondent “ is deep-seated and destructive of mutual confidence between the parties.” That fact being thus clearly established, it would seem that the remedy contemplated by the act above quoted should be applied, unless the personal interests, convenience and comfort of the cestui que trust should be subordinated to those of the trustee. We do not understand the act contemplates any such result as that. On the contrary, we think the controlling facts of this case bring it within the purview of the act, and require an application of the remedy therein provided. Without questioning the personal integrity or business qualifications of the respondent, it cannot be said that the antipathy of appellant towards him, which the court below has found to be “ deep-seated and destructive of mutual confidence ” between them, is the result of mere caprice on her part.

Without further comment, we think the decree of the court below cannot be sustained.

Decree reversed and petition reinstated; and it is further ordered that the record be remitted to the court below with instructions to enter a decree in accordance with the prayer of the petition, costs of this proceeding to be paid out of the trust funds.