Hall's Estate

Ladner, J.,

concurring. — I concur in the result, but only for the reason that section 48 of the Fiduciaries Act of June 7, 1917, P. L. 447, has been definitely settled to operate as a statute of limitation, foreclosing the rights of all parties to raise objections after five years from the date of the final decree unless fraud be shown.

I regard it the duty of a fiduciary who, as here, occupies the dual position of executor as well as trustee for a person not sui juris, to apply for the appointment of a guardian or trustee ad litem when his account as executor is audited. Only by this practice can such cestuis que trustent be protected against possible injury from their trustee’s conflicting interests: Earle’s Estate, 30 D. & C. 29; Komara’s Estates, 311 Pa. 135. The strict enforcement of the five-year limitation would seem to make this procedure all the more essential.

Now in this case, the fiduciary, notwithstanding its dual capacity, did not petition for such an appointment. I take its failure to do so to be the equivalent of an undertaking to represent and act for its cestuis que trustent. So considered, the certification in the petition for distribution that it gave notice to all parties in interest was not false, but by the same token, since it undertook to so represent possible conflicting interests, it has made itself responsible to its cestuis que trustent for any neglect or failure to raise any questions that the minors might have raised had they been independently represented. This responsibility I believe it must meet when it files its account in its trustee capacity. For this reason I concur in the dismissal of the petition for review.

Judges Klein and Bolger authorize me to say they join in this concurring opinion.