The decree of the court below restraining the sale and setting aside the agreement of sale should be reversed for the reason that the Act of 1945, P. L. 944, 20 PS Section 818, removed from the Orphans' Court power to control fiduciary agreements for the sale of real estate in the absence of fraud, accident or mistake and the court was without power to set aside the discretionary act of the trustee.
The majority opinion while denying the power of the court to set aside the discretionary act of trustee, does nevertheless permit trustee by agreement with another party to delegate to a third person — a "court of competent jurisdiction" — its power to determine the propriety of contracts of sale. No right to delegate such power now exists.
Prior to the Act of 1945, supra, the Orphans' Court possessed power to review actions of a fiduciary done pursuant to discretionary power vested in trustee by settlor or testator:Dundas's Appeal, 64 Pa. 325; Demmy's Appeal, 43 Pa. 155. This Court held in Brereton Estate, 355 Pa. 45, 48 A.2d 868, that the Act did not violate Article V, Section 22 of the Constitution of this Commonwealth. In so holding this Court dismissed the contention that the legislature could not properly remove from the Orphans' Court the power to review and to control the exercise of discretionary powers vested in a trustee by the creator thereof. Having there recognized abolition of that power a majority of this Court now holds that the Orphans' Court is a "court of competent jurisdiction." SeeCommonwealth Trust Company General Mortgage Investment FundCase, 357 Pa. 349, A.2d.
The power of the Orphans' Court to approve or disapprove the exercise of the discretionary powers entrusted by a testator to his trustee has been taken away. This discretionary power of the fiduciary cannot be delegated to the Orphans' Court or any other body or person *Page 339 whom the trustee might select. It cannot be seriously contended that a fiduciary with such personal discretionary power may delegate the same to a real estate broker so that he in his discretion may approve or disapprove of trustee's actions. The covenant with appellant to vest such power in the Orphans' Court was improper and void. It is well settled that a fiduciary may not substitute the discretionary judgment of another for his judgment: Kohler Estate, 348 Pa. 55, 58,33 A.2d 920. This, however, is the very result which the majority opinion not only approves but specifically states to be the basis for affirming the decree of the court below.
The decree of the court below should be reversed and the petition dismissed.