In Re White

*116MONTEMURO, Judge,

dissenting:

I must respectfully dissent.

We are confronted here with two questions: 1) whether Raymond White should have been removed as a co-trustee, and; 2) whether appellee bank’s petition to resign as co-trustee should have been granted. The majority holds that the trial court, in permitting both of the above, abused its discretion. On the basis of the record before us, and keeping ever mindful of our scope of review, I have concluded that the decision of the court below should be affirmed.

Before addressing either of the issues stated above, I should first reiterate, as a preliminary matter, our scope of review. As a reviewing court we are limited to reversing only if there was abuse of discretion or error of law on the part of the trial court. In Re: Croessant, 482 Pa. 188, 393 A.2d 443 (1978); Crawford’s Estate, 340 Pa. 187, 16 A.2d 521 (1940).

Title 20 Pa.C.S.A. § 3182(5) provides for the removal of a trustee “when the interests of the estate are likely to be jeopardized by his continuance in office.” Our Supreme Court has added the following refinements to the statutory scheme. It has long been held that the removal of a fiduciary is a drastic action and that proof of the need for that remedy must be clear. Estate of Croessant, supra; DiMarco Estate, 435 Pa. 428, 257 A.2d 849 (1969); Corr Estate, 358 Pa. 591, 58 A.2d 347 (1948). This is especially so where the trustee has been personally appointed by the settlor. Estate of Croessant, supra; Estate of Nassar, 467 Pa. 325, 356 A.2d 773 (1976). It has been held that where the trustee enjoyed the confidence of the settlor, the power to remove him should only be exercised when the estate is endangered and intervention is necessary to protect the trust property. Holmes’ Trust, 392 Pa. 17, 139 A.2d 548 (1958).

Appellants argue vigorously that Raymond White’s continued presence as a co-trustee severely jeopardizes the trust assets. In support of their argument they direct the *117court to testimony of instances where Raymond White has suggested investments in non-income producing property, and urged what appellants would characterize as self-dealing in the trust assets. These instances are thoroughly discussed in the majority opinion. There is no question however of the fact that none of these suggestions has been implemented. If they had been, my conclusion, and probably the conclusion of the trial court, would have been greatly influenced by this fact. I accept the trial court’s assessment that "... it is probably true the bank exerted the most influence in deterring improprieties ...” (R. 62a). Nevertheless, I would not require the very drastic remedy of removal for mere suggestions when: 1) there are two other co-trustees capable of resisting and preventing any improprieties, and; 2) the trial court, which had an opportunity to personally hear the testimony of Raymond White and observe his demeanor specifically found that, “Indeed, Raymond has indicated that he now understands the necessity of first securing court approval for the policies he formerly advocated.” (R. 62a)

I now turn to what I believe is the more difficult issue, whether the appellee bank should be permitted to resign as co-trustee. While there are statutes governing the procedure for resignation, e.g. 20 Pa.C.S.A. § 7121(3), 20 Pa.C. S.A. § 3184, there is none which specifically dictates circumstances in which a resignation may or may not be permitted.

The trial court’s decision on this issue was abased in large measure on the Restatement (Second) of Trusts. Specifically, section 106 states that:

§ 106 A trustee who has accepted the trust cannot resign except,
(a) with permission of the proper court; or
(b) in accordance with the terms of the trust; or
(c) with the consent of all the beneficiaries, if they have the capacity to give such consent.
Restatement (Second) of Trust § 106 (1959).

Contrary to the majority’s assertion that “the court below erroneously decided that the deed of trust gave the bank *118the right to resign. Therefore, it did not really exercise any discretion in permitting resignation ... ”, the court below actually decided that “both subsection a and b, we believe, apply to the instant situation.” (R. 62a). We agree with the majority’s assessment that the terms of the trust do not expressly allow any trustee to resign, as per subsection (b). In the absence of such a provision, subsection (a) of the restatement indicates that the permission of the proper court must be obtained. The question then becomes, on what basis does a court grant or withhold this permission?

Unfortunately, there is a dearth of case law, at least at the appellate level, on this question. Although I have looked to many of the same authorities as the majority, I would interpret these as suggesting the opposite result. The one appellate case which was cited by all of the parties on this issue, and which was relied on heavily by the trial court is the case of Nixon’s Estate, 235 Pa. 27, 83 A. 687 (1912). In the Nixon case, the appellant was one of three co-trustees appointed under the testator’s will. After filing a final accounting he applied to the court for a discharge. The lower court refused such application but was reversed on appeal. Specifically, the court stated:

The general rule is that a trustee may relieve himself from the liabilities arising from a trust relation by submitting the administration of the trust to the jurisdiction of the court. In our State the right of a trustee to be discharged is recognized by statutes which provide the method of procedure. Appellant has complied with the statutory requirements and has done everything that the law requires to be done antecedently to the asking of a discharge. There may be, and no doubt there are, cases in which a court would be justified in refusing a discharge, as where there has not been an accounting, or where the trustee on account of benefits accruing to himself had undertaken to do certain things, or for other sufficient reasons, the time had not arrived for the termination of the trust relation.
*119But we see nothing in this record to indicate that the remaining trustees are not fully competent to manage the trust estate, or that they are unwilling to do so. The trust estate will be as safe in their hands as it was in the hands of those who preceded them in its management. The argument that the cestui que trust will lose some advantage if the trustee be discharged is without merit. (Emphasis added).

Nixon, supra 235 Pa. at 30, 83 A. at 688.

Scott has this to say on the resignation of a trustee: It is within the sound discretion of the court whether or not to permit him [the trustee] to resign. Where the trustee has a good reason for wishing to resign, he will ordinarily be permitted to resign ...”
Even though the trustee has no special reason for resigning, other than his desire to be relieved of further responsibility in administering the trust, the court mil usually give him permission to resign. But where it was to be disadvantageous to the administration of the trust, the court may refuse the trustee permission to resign. (Emphasis added).

A.W. Scott, II The Law of Trusts § 106.1 (3rd ed. 1967) p. 838.

Much in the same spirit is the following from Handbook of the Law of Trusts.

Naturally, a trustee who has accepted a trust but finds that administration of it has become burdensome or not in the interest of the beneficiaries should be able to rid himself of the trust duties____ The predominant consideration is the welfare of the beneficiaries.
A reluctant trustee is not desirable.

G.G. Bogert, Handbook of the Law of Trusts, § 31 (1973) p. 103.

Appellants argue that the welfare of the beneficiaries requires the court to refuse appellee bank’s resignation. Their arguments on this issue are not lacking in appeal, and I might have been persuaded by them were I acting as a *120factfinder. This however is not my function here. As was explicitly stated by our court in E.I. duPont de Numours & Co. v. Berm Studios, Inc., 211 Pa.Super. 352, 236 A.2d 555 (1967):

Appellate review of the record of a trial before a judge without a jury is limited to a determination of whether the findings of fact of the court below are supported by competent evidence and whether or not the lower court committed error of law.

E.I. duPont v. Berm, supra, 211 Pa.Superior Ct. at 354, 236 A.2d at 556.

In view of the above standard, it is clear that although appellants’ arguments are appealing, they are misdirected. This will be demonstrated by the discussion below.

As is relevant to this issue the trial court specifically found that:

It is correctly pointed out that trustee Raymond White’s insistence on certain courses of action has deviated from what this Court would consider to be appropriate courses of action under the law and the instrument of trust. Clearly, the corporate fiduciary was correct in resisting Raymond’s forceful suggestions that the trust should invest in gold, silver, pennies to be stored underground until their value increases, puts and calls, canned foods and commodities. The bank was also correct in resisting what appeared to be on at least one occasion a suggestion of self-dealing occur with respect to certain lumber, just as the Bank was correct in taking a contrary position concerning the valuation that could be placed on the share of any given beneficiary.
The controversial investments would have been improper not only because they were speculative, but also because, while they very well may have appreciated in some case substantially in value, they would not have been income producing as such, but rather would have amounted to increase in capital.
However, Raymond could not act alone and still cannot act alone. While it is probably true the bank exerted the *121most influence in deterring improprieties there is no reason why the remaining individual trustees cannot in the future cause investment policies to remain within proper boundaries. Indeed, Raymond has indicated that he now understands the necessity of first securing Court approval for policies he formerly advocated. Certainly, there can be no excuse for the remaining trustees to conduct the investment policies of the trust inappropriately. For example, should a situation arise where the trustees deem some degree of self-dealing to be beneficial to the trust, there can be no excuse for failing to bring the plan before the Court for its review prior to implementing it. (R. 61a-62a)

Appellants make five specific assertions or subarguments in regard to this issue. Each will be set forth and disposed of briefly.

Appellants first assert that investments in gold, silver, pennies, puts and calls, foreign currencies, canned foods, commodities and lumber are not proper investments for the C.A. and Flo B. White Trust. Secondly, appellants assert that the trustees of the C.A. White and Flo B. White Trust may not arbitrarily determine valuation of shares for distribution or engage in self-dealing. Certainly these are legally correct statements. See 20 Pa.C.S.A. § 7302 et seq and Trust Agreement (R. 8a-17a). In addition, it cannot seriously be disputed that co-trustee Raymond White has suggested these measures in the past. There is no evidence however that such improprieties have in fact occurred. In the absence of any case law requiring that the suggestion of improprieties on the part of one co-trustee is a circumstance in which the court should refuse a petition for resignation on the part of another co-trustee, there is no misapplication of law here.

This being so, resolution of this issue then becomes a question of credibility. Appellants third, fourth and fifth assertions are that Raymond White would continue to suggest such improprieties, that the remaining individual co-trustee would not resist Raymond White’s improper sugges*122tions, and that Raymond White would treat the beneficiaries unfairly. There is competent evidence to the contrary, as careful examination of the record has indicated. (See e.g. R. 186a, R 279a) The trial court had the opportunity to personally observe and examine each of the parties. As the included portions of the trial court’s opinion indicate, it decided that the testimony favoring appellee’s position was entitled to greater weight, and therefore ruled that the welfare of the beneficiaries was not endangered such that it should refuse appellee bank’s petition to resign. We are not in a position as an appellate court to re-determine questions of credibility.

For the above stated reasons, I would hold that appellants have not demonstrated an abuse of discretion as would justify a reversal of the trial court’s decision.

I would affirm.