In Re Estate of Devine

¶ 1 I respectfully dissent from the Majority's decision to uphold the inclusion of *Page 704 the Drexel Avenue property in the inventory of settlor Anna Marie Devine, a/k/a Marie Gallagher's ("decedent") estate. I believe that the trust document is clear and creates an irrevocable trust without a power to terminate.

¶ 2 It is well settled that a settlor has the power to revoke a trust only if he has reserved such power by the terms of the trust. In re Fellman, 412 Pa.Super. 577,604 A.2d 263 (1992) (citing Restatement (Second) of Trusts § 330(a)). Here, the power of sale reserved by decedent does not constitute a power to revoke the trust. It merely allows the trustee to sell the property, and it is nothing more than a routine power of sale which is customarily included in trust instruments.

¶ 3 Further, the power reserved to decedent as trustee was merely to sell the trust corpus and not togive it away. The right to sell simply permits the trustee to exchange one thing of value for another, with the proceeds to benefit the Appellant. However, it is clear from the record that decedent's purported "sale" of the Drexel Avenue property to herself and her husband for the sum of only $1.00 was a gift, not a sale. Since decedent lacked the power to give the property away under the terms of the trust document, the transfer is invalid.¹

¶ 4 Moreover, I disagree with the Majority's finding that the doctrine of laches bars Appellant's claim, as that doctrine is inapplicable to this case. Appellant had no right to occupy the property until well after his 35th birthday because decedent reserved the right to remain in the house until her death. The estate was not prejudiced as a result of the fact that decedent and the witnesses to the creation of the trust are deceased and unable to testify; such testimony would not have been admissible even if the witnesses were alive, as the language of the trust document is clear and unambiguous. See Estate ofTonner, 353 Pa.Super. 1, 508 A.2d 1237 (1986) (court will look to extrinsic evidence to determine settlor's intent only if it cannot discern intent from text of trust document).

¶ 5 Because I would find that the trust was irrevocable and that the "sale" was an invalid attempt to revoke that trust and therefore void, I would reverse the trial court's order. Accordingly, I respectfully dissent.

¹ I believe the conveyance would still be invalid even if it could fairly be characterized as a sale. Although decedent had the power to sell the Drexel Avenue property, the language of the trust document makes clear that she was granted that power in her capacity as trustee, not in her capacity as settlor or life tenant. As such, she was obligated to exercise that power in favor of her son, as beneficiary of the trust. SeeIn re Paxson Trust I, 893 A.2d 99 (Pa.Super.2006) (stating well settled rule that trustee has duty to administer trust solely in interest of beneficiary and is prohibited from: 1) dealing with trust property for benefit of himself or third parties, and 2) placing himself in position inconsistent with interests of trust).