157 A. 908 | Pa. | 1931
For more than thirty years, Charles C. Daub, this testator, and his brothers, August and Jacob, had been in *449 business together, he having a half interest in the firm and each of the others a quarter interest therein. Their partnership articles provided that upon the death of either of the partners, the others should pay his estate a specified sum in cash, — in the case of this testator, $210,000, — and all the decedent's interest in the firm's assets should then vest in the survivors. Whether or not the articles were broad enough to cover the death of the second of the three partners, leaving but one survivor, was not determined by the court below in this proceeding, nor will it be by us; our conclusion, as hereinafter stated, would be the same even though we decided they were not.
On March 22, 1921, Jacob Daub, one of the partners, died, and his personal representatives elected to take the sum he was entitled to under the partnership articles, in securities standing in the name of the firm. These were set apart for the benefit of his estate, but had not been transferred to it on December 14, 1922, when the present testator died. At that time the appraised value of the assets, standing in the firm name, was $543,957.88, — of which $101,500 belonged to Jacob's estate, leaving a net balance of $442,457.88. If the partnership articles did not apply to the situation then existing, testator's estate was entitled to receive two-thirds thereof, or $294,971.92, less the fees, costs and expenses of settling the partnership, and the depreciation in value possibly and not uncommonly arising from an enforced liquidation. If the partnership articles did then apply, the estate was entitled to receive from August, the surviving partner, the net sum of $210,000 in cash.
By testator's will, — which specifically refers to the partnership articles, but says nothing regarding the rights of the last survivor of the three partners, — he appointed his two brothers, Jacob and August, as executors and trustees, but the former having predeceased him, the latter was commissioned as sole executor. When the question of the widow's election came up, it was important *450 for the executor to know, in order to advise her properly, whether the estate was entitled to the $210,000 in cash, or to an interest in the net proceeds on the winding-up of the partnership. He therefore laid the matter before the lawyer, — a man of unquestioned integrity, — who had been counsel for the firm and for each of the partners during the thirty years the firm had been in existence, and who had drafted the partnership articles and the will of testator. He advised the executor that testator's estate was entitled to receive only the $210,000 in cash provided for in those articles, and upon the payment of that sum all the assets of the firm would vest in the sole surviving member thereof. At the trial in this proceeding, the lawyer testified he had so advised the executor. Moreover, this conclusion agreed with what testator himself had repeatedly said after the death of Jacob, was his understanding of the scope of the partnership agreement.
On February 23, 1923, which was about two and a half months after the death of testator, his widow elected to take under his will, and signed a formal paper so stating. Three days later, at her residence, she duly acknowledged and delivered it and it was recorded the same day. Whether or not that meeting was the result of previous consultations on the subject, and what, if anything, had theretofore been said regarding the interest of testator's estate in the partnership assets, does not clearly appear, possibly because of the death of the executor and of the notary public as hereinafter set forth. The widow knew, however, that it was claimed the estate's interest in the partnership assets was $210,000 in cash, and that, under the will, she was to receive a life interest in $70,000, which was one-third of that sum, instead of an absolute interest in one-third of the estate, as provided by the intestate laws. In point of fact, the only assets of the estate were the contents of her home, which she received under her claim for the widow's exemption, and the estate's interest in the partnership. *451 The home itself had belonged to the firm, but it had been conveyed by the partners, through an intermediary, to her and her husband as tenants by the entireties, and on his death vested in her in fee.
About a year after testator's death, the executor filed his account, charging himself with the $210,000 and the appraised value of the furniture, and claiming credit for the delivery of the furniture to the widow, and for the usual items of expense arising in the settlement of estates. The widow and the three children of testator agreed in writing that the account should be confirmed absolutely, that the $70,000 should be awarded to a trustee for the benefit of the widow for life, with remainder to the children, and that the net balance should be divided between them equally. The will, the partnership articles and the agreement were handed to the auditing judge, and he decreed distribution accordingly.
From then on, the widow, without objection, regularly received the income of the $70,000, until January 31, 1929, more than six years after the death of testator, and nearly five years and eleven months after she had elected to take under his will. She then filed the present petition asking a decree vacating her existing election, and for leave to make a new election to take against the will. At that time, the notary public before whom she had acknowledged her election had been dead for several years, and the executor, the only other person who was present when it was executed, had recently died. A citation was awarded, answers were filed, testimony taken, and the court below granted the prayers of the petition. Testator's son, who was one of the respondents in the proceeding, then prosecuted this appeal.
The gravamen of her petition is that she had been told by the executor that the value of the estate was $210,000; that she was given no other information in regard thereto, except that it consisted of testator's interest in the partnership; that the executor "was in duty bound to act and advise [her] to the greatest possible extent"; *452 that because of the close relations between them she did not seek legal advice until after he died, when, for the first time, she learned that the estate amounted to more than the $210,000, presumptively because its interest in the partnership was claimed to exceed that sum.
The testimony in support of the petition consisted, so far as it was important, in her own statements, which were vague and unsatisfactory, and were difficult to meet because of the death of the executor and the notary public. She admitted that, after her election, and during the executor's lifetime, she had never asked the executor or anybody else for information regarding the estate, but persisted in the contention that this was because of her great and continued confidence in him. Yet it was clearly proved, and is practically admitted even by her, that, about one year after the death of her husband and about five years before the petition was filed, she had had a controversy with the executor regarding a matter growing out of her interest in the estate, and that thereafter neither visited the other, though they lived but half a block apart, and their previous friendly relations had dwindled to a bowing acquaintance when they chanced to meet. Her testimony on cross-examination abounded in such answers as "I don't remember that," "I don't recall it," and similar expressions, yet, because of the lapse of time and the death of the executor and notary public, her evidence, in order to sustain her petition, should have been free from reasonable doubt. It was far from being so.
The basis of the decision of the court below was that, "whether or not the executor believed that the partnership agreement was in force at the death of the testator, his failure to disclose full information to the widow concerning her husband's estate, was . . . . . . a constructive fraud on her, and laches should not be attributed to her in not filing a petition within the time usually required." We are not told why the court below so thought, and cannot agree with its conclusion. That the executor believed *453 the partnership agreement applied to the status which existed after testator's death, is as free from doubt as anything human can be; and that all the other parties in interest likewise so believed at that time is an admitted fact. We do not qualify our oft-repeated decisions that a widow is entitled to full information regarding her deceased husband's estate before she can be called upon to make her election, but that principle does not control here.
As far back as 1863, when, under the then-existing laws, there was no time requirement within which a widow must elect to take against her husband's will or be presumed to consent to take under it, and where there was no formal election, and none was required (Greiner's App.,
By section 23 (b) of the Wills Act of June 7, 1917, P. L. 403, 410, which was in force when testator died, it is provided that a widow must make her election in writing "within two years [subsequently reduced by the Act of April 2, 1925, P. L. 117, to one year] after the issuance of letters testamentary," and "Neglect or refusal or failure to deliver such writing within said period shall be deemed an election to take under the will." No matter how hard the decision in a particular case may seem to be, if a widow does not make her election within the statutory period, the courts, because of that act, must declare that she is deemed to have made an election to *454
take under the will, for this "statute fixes the time as definitely as does that relating to taking appeals, and both are mandatory. . . . . . . In view of the positive provisions of the statute we are not persuaded that relief could be granted ex gratia": Minnich's Estate or Sherwood's Est.,
It follows, since "the intention of the Act of 1917 is to promote certainty in the settlement of estates" (Bailey's Est.,
In Salomon's Est.,
The decree of the court below is reversed at the cost of appellee, and her election to take under testator's will is reinstated and confirmed.