Estate of Wagener , 191 Pa. 566 ( 1899 )

Opinion by

Mb. Justice Fell,

The facts necessary to the understanding of the questions presented by this appeal may be briefly stated. The appellant loaned $25,000 to the firm of George K. Sistare’s Sons on the pledge as collateral of securities which were held under the provisions of the will of David D. Wagener upon an active trust for the testator’s daughter for life and for the remaindermen. The loan was procured and the securities pledged by Harold Clemens, one of the trustees, who was a member of the firm of George K. Sistare’s Sons. Brentano Clemens, the other trustee, instituted proceedings in equity to recover the securities for the trust estate. The master found that the pledge had been made without the knowledge of Brentano Clemens or Susan B. Clemens, who had a life interest, and for a purpose not connected with the trust, and that the appellant had legal notice of the abuse of trust. The decree recommended by him, requiring a return of the securities, was made by the court of common pleas and affirmed by this Court. See Clemens v. Heckscher, 185 Pa. 476. The defendant in the proceeding mentioned is the appellant here. In substance his contention is that, notwithstanding the fact that the pledge of the securities was invalid as affecting the trust, still it constituted an assignment to him of the individual interests of Harold, Brentano and Susan B. Clemens in the securities, and that he is therefore the present owner thereof and entitled to an account. In assertion of this right, and evidently for the purpose of establishing his claim as the owner of the interests mentioned, he petitioned the orphans’ court, under the act of April 17,1869, for a citation directed to Brentano Clemens, who is now the only trustee. This appeal is from the order dismissing the petition.

The act of 1869 has received a very liberal construction in order that full effect might be given to its purpose to protect contingent interests. In Keen’s Appeal, 64 Pa. 268, it was said that the owner of any possible contingent interest would come within its clear intent and spirit; and in Hartman’s Appeal, 90 Pa. 203, it was held to apply to estates in the hands of trustees, although its words limit its application to estates held by executors and administrators. While there has been a latitude of construction to protect contingent interests, the act has not been and should not be extended to confer upon one who has not a clear title to an interest the right to interfere in the management of a trust estate.

The interest to be protected may be even remotely contingent, but the possession of an interest should be established with at least reasonable certainty, and a proceeding under the act should not be sustained when its manifest purpose is not to protect a right, but to establish one. We are of opinion that the petition was properly dismissed because it did not appear that the petitioner had such an interest as to bring him within the intent of the act of 1869.

The decree is affirmed at the cost of the appellant.