concurring and dissenting.
The majority holds that Girard Bank has disabled itself from receiving a termination commission by its. failure to collect such fees from trust income. This holding is inappropriate in view of the fact that the issue is not before us. Furthermore, such a holding is inconsistent with and contrary to our prior case law. I dissent from the majority opinion insofar as it precludes Girard Bank from receiving a termination fee in this matter.
The sole issue on appeal is characterized by the majority as whether the trustee’s compensation was properly handled as a charge against principal. Because the only fees which were subject to dispute in the lower courts were those for income commissions, the issue is in fact narrower than that statement suggests. The propriety of a charge against principal for those services performed by the trustee in handling the trust corpus was neither the subject of this appeal nor objected to in the proceedings before Orphans’ Court Division in the Philadelphia County Court of Common Pleas. Indeed, the Appellants own statement of the question involved frames the issue as “where ... [the] testatrix ... executed a will which directed, ‘trustee ... to collect ... income ... and after the payment of taxes, trustee’s compensation and other proper charges against income to pay the whole of the net income to my sister ... for her natural life,’ is trustee justified in charging its entire compensation against principal?” [Appellants’ Brief at p. 3] [Emphasis added]
While the majority curiously fails to do so, the Appellants themselves have always recognized that Girard Bank is entitled to compensation for its efforts in managing the corpus of the testamentary trust. Nowhere is this more evident than in the proceedings before Administrative *421Judge Pawelec on objections filed to the final account of the trustee. The following exchange ensued:
THE COURT: Now, basically — and I don’t know whether it is covered in the stipulation or not — what you are in essence saying is that — are you denying the fact that the trustee is entitled to a terminal fee?
MR. WIEST:1 No. No, we are not denying that.
MR. CUSHMORE: Your Honor, if I may interrupt? This is not actually a terminal commission. This is the sum total of the compensation charged year by year in the trust.
THE COURT: I realize that. I realize that that is the way it is listed in the account and that is what is included. I just wonder — and as I understand it the trust is in fact terminating and there is going to be a distribution to the two heirs.
MR. WIEST: That is correct.
THE COURT: My question is: From the objection as I read it there was a question in regard to the interpretation of possibly the instrument. And I was wondering whether counsel for the objectants actually were saying that the trustee was not entitled to any compensation from principal, even a terminal commission? Whether that was their objection? And they say “No”.
MR. WIEST: Your Honor, that was a possible interpretation under the will. But we are satisfied that the trustee shall have a terminal lump sum payment out of principal.
THE COURT: All right. I think I understand that.
MR. WIEST: But the whole of the administrative expenses should not be charged against principal. That is our objection.
THE COURT: You don’t mean “adminstrative expenses”?
*422MR, WIEST: Well, the trustee’s expenses — all of the trustee’s compensation should not be charged against principal.
MR. CUSHMORE: Your Honor, I think that it becomes clear from the stipulation that the dollar amount of the compensation is not in dispute. It is simply the fact that all of the trustee’s compensation was allocated and paid from principal and I think the objectors’ position is that some part of that — or all of it, should have been charged against the income throughout the life of the trust.
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THE COURT: Counsel for the objectants agrees that that number is correct, except — and let’s see if I have the exception right — except he says that a certain amount of that only should be charged principal [sic], as a terminal commission, and the balance should have been charged against income during the course of the trust.
MR. WIEST: That is our position exactly, your Honor. THE COURT: All right. Now, do you have those numbers in here — as to what you agree? Or did you not agree on numbers?
MR. CUSHMORE: The only agreement is that the sum charged and listed in the account was correctly computed through the years according to the standard schedules in effect.
Now, the question is simply the allocation of that between the principal and income. And we don’t agree on that.
MR. BROOKE: The answer to your Honor’s question is, no, that has not been stipulated to.
THE COURT: That has not been agreed to?
MR. BROOKE: That is correct.
MR. WIEST: That is correct.
THE COURT: Now, let me ask you the other question. How am I supposed [sic] to conclude that without any testimony? Let’s suppose I don’t agree with the position of the bank and I agree with the position of the objectants. What evidence do I have to make the allocation?
*423MR. CUSHMORE: I don’t feel you have any evidence for that.
MR. WIEST: We believe that you can, your Honor. You can say that a terminal commission should be at a certain percentage of the gross estate at the time of termination. THE COURT: Shouldn’t somebody put something on the record as to that particular number? Or do I just make it up?
MR. WIEST: That number is in the account, your Honor. The gross value of the estate at termination is on record in the account.
THE COURT: All right. But what is the percentage that I take of that number?
MR. WIEST: I think that is what the Court must decide.
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THE COURT: ... But now what would it be if I say there is no agreement. If I conclude there was no binding lifetime agreement between the decedent and the bank, then I would have to make an allocation between what should be the terminal commission and the balance.
MR. WIEST: Suppose we could agree, your Honor, that the services rendered as far as the principal was concerned, were the ordinary services in which principal of an estate of this size and for this duration and this complicity was fixed?
THE COURT: The only problem with that is that is that we don’t know the complexity of this. We know the duration but not the complexity or anything else about it. And I know banks in many instances determine terminal commissions and have a fixed formula. Now, would that be acceptable to the objectants? I don’t know the answer to that.
I am not asking you to answer that. I am just presenting the problem. I am not expecting you to answer that question now. I know you probably hadn’t thought about that.
MR. WIEST: No, I have, your Honor. And I have a case in which the bank — this very bank asked for and received *424three and a half per cent in terminal commissions. And I mentioned that case in my brief. And for that reason you may be able to decide it if we get over the first hurdle.
We may be able to determine what the commission should be — the terminal commission should be — under the case law.
[R. 16a-25a] [Emphasis added]
The majority interjects a dispute into this appeal which simply did not exist. The actual amount of the termination fee to be paid to Girard was not agreed upon by the parties; however, Girard’s entitlement to such a fee was never contested. The lower courts’ conclusion that the fee agreement was controlling made it unnecessary to determine the percentage or fee appropriate upon termination of the trust. The majority’s contrary conclusion that the provision of the will was controlling necessitates a remand of the issue of the appropriate termination fee.
The majority interprets the will to require that all compensation, including the termination fee, be paid from the income of the trust. Item X of the will provides:
All the rest, residue and remainder of my estate, real, personal and mixed, of whatsoever nature or kind the same may be, or wheresoever the same may be situate, I give, devise and bequeath to Girard Trust Company, in trust, to hold, invest and reinvest the principal thereof and to collect the interest, income, dividends and rentals therefrom and after the payment of taxes, trustee’s compensation and other proper charges against income, to pay the whole of the net income to my sister Gertrude T. Kauffman, for and during the term of her natural life.
Upon the death of the said Gertrude T. Kauffman should she survive me, or upon my death, she having predeceased me, I give, devise and bequeath my residuary estate to those children born of the sisters of my deceased husband, Charles A. Schwenk, being his nephews and nieces, in equal shares, who are living at the *425death of my said sister Gertrude T. Kauffman, should she outlive me or at my death should she predecease me. Notably absent from the provision is any language rela-
tive to the compensation to be paid to the trustee for management of the trust principal. It is clear, however, that "... labor, care and responsibility pertaining to the conservation of the capital itself are properly a charge on it, and are to be deducted from it when the trust expires, or the particular trustee’s relation to it ends.” Bosler Estate, 161 Pa. 457, 462, 29 A. 57, 60 (1894). The language of the will providing for compensation from the income of the trust may not properly be interpreted to fill that void.
In re Reed, 467 Pa. 371, 357 A.2d 138 (1976), presented our Court with this issue of whether a trustee is entitled to receive payment from the principal of a trust for the administration and conservation of the trust, in addition to compensation received from the trust income under provisions of a will appointing a trustee. We held that a trustee was entitled to compensation from the principal although compensation from trust income was expressly prescribed in the will. This Court rejected arguments that a provision of the will setting the compensation for the trustee at the sum of $4,000 per year was intended to be the sole compensation and that the trustee would be barred under 20 Pa.C.S. § 7185(c) from requesting additional compensation. We reiterated our holding in an earlier case, Kennedy Trust, 364 Pa. 310, 314, 72 A.2d 124, 126 (1950), in which we stated:
Here, the trust deed is silent as to the compensation payable to the trustees upon the termination of their fiduciary duties and their faithful handling of and accounting for the trust corpus. Their prima facie right to remuneration for such services is not to be overriden by a mere implication drawn from incidental mention in the deed of trust of a ... commission to the trustees on income____ There is no suggestion that the deductible commission on income was to be in complete discharge of the trustees ’ services with respect to corpus.
*426Accordingly, while I join the majority opinion in its resolution of the issue of income commissions, I dissent from its holding that Girard Bank is foreclosed from receiving a termination fee. I would remand the issue of the termination fee to the Orphans’ Court Division of the Philadelphia County Court of Common Pleas for resolution.
. Mr. Wiest was and is counsel for the Appellants.