J-A16033-15

2015 PA Super 199

TRUST UNDER AGREEMENT OF EDWARD 

WINSLOW TAYLOR

IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: ELISE W. CARR, EDWARD 

W. CARR, IAN N. CARR, RICHARD R. 

CARR, CAROLINE T. CARR, W. SEWELL 

WALLACE, SUZANNE T. WALLACE, 

JENNIFER A. WALLACE-COLLINS, EVAN 

S. WALLACE, CHRISTOPHER G. 

WALLACE, SAMUEL H. WALLACE , HOPE 

T. WALLACE & ANTHONY T. WALLACE

No. 2701 EDA 2014

Appeal from the Order August 18, 2014

in the Court of Common Pleas of Philadelphia County

Orphans' Court at No.: 3563 of 1939

BEFORE: LAZARUS, J., FITZGERALD, J.*, and PLATT, J.**

DISSENTING OPINION BY PLATT, J.: FILED SEPTEMBER 18, 2015

I respectfully dissent. Because I would find that the special provision 

codified in section 7766(b)(4) of the PEF code prevails over the general 

provision found at section 7740.1, I would affirm the decision of the trial 

court. 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

** Retired Senior Judge assigned to the Superior Court.
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Here, Appellants in effect seek permission to use the general 

modification statute of section 7740.1(d) of the PEF code to gain the future 

power to remove a corporate trustee upon agreement of the beneficiaries. 

Section 7766(b)(4), which governs removal of a corporate trustee, 

specifically addresses this objective. It is a settled rule of statutory 

interpretation that when there is a conflict between a general statutory 

provision and a more specific provision, the specific provision controls.

Whenever a general provision in a statute shall be in 

conflict with a special provision in the same or another statute, 

the two shall be construed, if possible so that effect may be 

given to both. If the conflict between the two provisions is 

irreconcilable, the special provision shall prevail and shall be 

construed as an exception to the general provision, unless the 

general provision shall be enacted later and it shall be the 

manifest intention of the General Assembly that such general 

provision prevail.

1 Pa.C.S.A. § 1933. 

It is evident that there is a conflict between sections 7740.1 and 

7766(b). They require different modes of analysis and could very likely 

result in different outcomes depending on which section controls. Thus, 

because of this potential conflict, I would conclude that the specific 

provisions of section 7766(b) must prevail.

Further, I see no manifest intent on the part of the Pennsylvania 

Legislature that would require a different result. The Legislature had the 

opportunity to expand the grounds for removal of a corporate trustee, to 

allow for removal upon consent of some or all of the beneficiaries, when it 
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adopted several of the provisions of the Uniform Trust Act and declined to do 

so. As the trial court stated:

Section 7766 of the PEF Code as adopted by the 

Pennsylvania legislature clearly does not allow for removal of a 

trustee based on the consent of some—or all—of the trust 

beneficiaries. The comparatively recent trust provisions of the 

Pennsylvania PEF code are modeled on the UTC. Section 

7766(b)(4) is substantially similar to the UTC except that the 

UTC permitted removal of a trustee when all the beneficiaries 

agreed. The Pennsylvania legislature did not adopt that 

provision, in contrast to the legislatures of other states such as 

Vermont, Maine and Arkansas which allow removal of a trustee 

based on the agreement of all beneficiaries.

(Trial Court Opinion, 8/18/14, at 9) (quotation marks and footnotes 

omitted).

The learned Majority largely rests its conclusion that the trial court 

erred in applying section 7766 on the fact that Appellant “did not seek 

currently to remove [Appellee] as trustee.” (Majority, at 12). The Majority 

faults the trial court for “imputing motives to the Appellants based on 

assumptions not supported by the record. . . .” (Id.). The Majority ignores 

the obvious implications of its decision. There is no rule of statutory 

interpretation requiring us to do that. Under the Majority’s reasoning, any 

beneficiary seeking to avoid the more onerous provisions of section 7766 

could simply petition the court to modify the trust under section 7740.1, 

arguing to the court that it was not seeking to remove a trustee but merely 

to modify the trust agreement. Under the Majority’s approach, section 7766 

would be largely eviscerated and the Legislature’s decision not to adopt the 
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portion of the UTC that permitted removal of a trustee when all the 

beneficiaries agreed would be meaningless. I cannot support such judicial 

activism in light of the Legislature’s clear decision to require that individuals 

seeking to remove a trustee comply with section 7766. “When the words of 

a statute are clear and free from all ambiguity, the letter of it may not be 

disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S.A. § 1921(b). 

I would affirm the decision of the trial court.

Accordingly, I respectfully dissent.