Estate of Hemphill

Supreme Court of Pennsylvania January 25, 1897

Estate of Hemphill, 180 Pa. 95 (Pa. 1897)

36 A. 409; 1897 Pa. LEXIS 880

Dean, Fell, Green, McCollum, Mitchell, Sterrett, Williams

Opinion of the Court

Per Curiam,

The learned judge of the orphans’ court was clearly right in holding that the trust referred to in the petition of William J. Hemphill was active and continuing; and hence there was no error in granting the prayer of the petitioner by appointing a trustee to fill the vacancy occasioned by the renunciation and refusal to act of those named as trustees in the will.

Nothing can be profitably added to what has been said on the subject of the court below. On its concise and satisfactory opinion, the decree is affirmed and appeal dismissed at appellants’ costs.

Reference

Full Case Name: Estate of William K. Hemphill. Appeal of Clement M. Hemphill and A. Julian Hemphill
Cited By: 19 cases
Status: Published
Syllabus: Will — Trusts and trustees — Active and continuing trusts. To establish an active trust in Pennsylvania the duty to be performed by the trustee must not only involve some positive action on his part, but an action attended with some discretion. A trust to pay the “net income” of realty to the cestui que trust involves the exercise of discretion by the trustee. Where by the terms of the will the real estate, after the death of the widow, is left to certain children named, “in trust, the net income of which shall belong to them share and share alike, and at their death, I give, devise and bequeath the same to their heirs, . ...” an active, continuing trust is created, and a trustee will be appointed, upon petition, after the death of the widow.