Bell's Estate

Opinion by

Henderson, J.,

This case comes up on an appeal from the decree of the court of common pleas removing the appellant as trustee of the estate devised to him under the will of John Bell. The jurisdiction of the court is not questioned and the only point contended for by the appellant is that the evidence was not sufficient to warrant the action of the court. The proceeding originated on the petition of two of the cestuis que trustent setting forth that the trustee had mismanaged the estate, was insolvent and had become an unfit person to execute or look after the duties of the trust and praying the court to remove him as such trustee. The case was heard before the presiding judge and evidence was taken showing the manner in which the trustee had discharged his duties, the form of his accounts and his habits. Testimony relating to the latter subject was taken in the orphans’ court in a proceeding to remove the appellant as executor of the same will and the evidence in that case was also before the court. After a consideration of all of the evidence the court found that the appellant had mismanaged the estate, had become incompetent to discharge the duties of his trust and that such incompetency was likely to continue to the injury of the estate under his control. The trustee and the witnesses were before the court and an opportunity was thus given to duly estimate the value of the testimony given. There was evidence showing neglect, incompetency and dissipation. It was also shown that the trustee mixed the trust funds with his own and that he neglected to charge himself with all of the funds received. The conclusion of the court was, therefore, supported by competent evidence. The Act of May 1,1861, P. L. 680, vests in the court a discretion to remove a trustee whenever the court shall be satisfied that such trustee is wasting or mismanaging the property under his charge or that for any reason the interests of the estate or property are likely to be jeoparded by the continuance of such trustee. This discretion must be exercised, of course, on proper evidence, but where testimony of the character implied in the act of assembly is presented the action of the court ought not to be reversed except where it is very clearly made to appear that there was an abuse of discretion: Piper’s Appeal, 20 Pa. 67; Wilson v. Pennock, 27 Pa. 238; Perrett’s Estate, 14 Pa. Superior Ct. 611. A careful examination of the evidence does not satisfy us that there was such abuse of discretion. Giving credit as the court evidently did to the evidence in support of the petition facts appeared such as warranted the decree of the court under the act of assembly.

The decree is affirmed at the cost of the appellant.