*1 the common law appellant we with the agree Since and he was legislature duly was not abrogated rule councilman, appellant’s need address we elected as arguments. other with is reversed and remanded order of the trial court appellee writ of mandamus
instructions issue duly city as a elected member certification appellant’s council. Kotz a/k/a F. William of William KOTZ a/k/a
ESTATE cases). Kotz, (two Frederick William Deceased Appeal KOTZ. Mary A.
Appeal KOTZ. Pennsylvania. Supreme Court April 1979. Submitted Decided Oct. *2 Reinl, B.
Raymond Grove, Willow County, Bucks for Vir- Kotz. ginia O’Neill,Jr.,
Michael J. Renninger, Spear Kupits, & Doyles- town, County, Bucks for Mary A. Kotz. EAGEN, J., ROBERTS,
Before C. O’BRIEN, NIX, MANDERINO, FLAHERTY, LARSEN and JJ. THE COURT OF
OPINION O’BRIEN, Justice. cross appeals the court on are before
There cases Kotz, A. decedent, Mary Kotz, William sister of Virginia and decree decedent, from the Kotz, widow order Pleas, Orphans’ of Common of the Court September permitted This order Division, Montgomery County. prop- determined family exemption to claim the widow Kotz, sister, joint Virginia his decedent and erty held to a widow’s survivorship, with tenants The order further determined against conveyances. election mortgage aby was not severed his sister. decedent and executed Virginia Kotz Appeal No. I. 677— that portion seeks our review of Kotz to include Mary A. permitting 8 order September *3 Hatboro, Road, Pennsyl- located at 14 Warminster property Kotz has Mary her widow’s election. vania, for purposes of the failure of because appeal a motion to quash filed 8, to the September file exceptions Kotz to Virginia and decree. order Quash
A. Motion 21, are: On June issue pertinent The facts to elect to filed a notice that she intended 1976, Kotz Mary to which she her husband conveyances by take all against at 14 property specified not a The notice party. was had Road, This County, property Montgomery Warminster Kotz, sister, Virginia and his owned decedent by been 1959, survivorship eight since tenants with Kotz. Mary of decedent and marriage to the years prior cita- 1976, filed a for 26, Mary petition Kotz August On 24, 1976, why to show cause tion, on September returnable included in the should not be property the Warminster Road the surviving to the election of estate or otherwise exemp- petition family filed a for Kotz also spouse. Mary surviving spouse. to the and a allowance petition tion for 21, 1976, On September Kotz filed an answer to Virginia 1976, 26, August petition. On November hearing was held on the to include petition the Warminster Road estate and the of the election property propriety spouse The surviving against presid- property. ing judge at hearing Benjamin Honorable Sirica. Judge prior issuing Sirica died an or decree order in this Judge case and subsequently Alfred Taxis heard oral 1977, argument petitions. on the September Judge On Taxis “Opinion petitions issued an and Decree sur for family exemption of spouse’s allowance election under PEF Kotz 4 D Code.” & C Montg. 3d 85 (1977). Orphans’ The the joint Court determined with survivorship was not severed aby and, therefore, both mortgage taken tenants the War- minster Road was not includable in the probate estate of Kotz. William The court further determined that the widow elect against could to take the Warminster Road property. exceptions No either were filed. party Virgin- ia Kotz to this appealed January court at No. 677 1977 and Kotz Mary to this court at No. 691 appealed January 1977. October, 1977, Kotz Mary filed a to quash motion appeal Kotz. Virginia
Mary
argues
Kotz
that appeal Virginia
should
be quashed because of the failure of
Kotz to file
exceptions
to the September
“order and decree”
Judge
entered
Taxis.
deny
We
to quash.
motion
exceptions
failure to file
does not affect the appealabili-
order;
ty
rather,
an
the lack of exceptions fails to
preserve
for appellate
issues
review. Estate of McGrorey,
*4
B. Waiver
Mary argues, as alternative an to quashing appeal, the issues raised by preserved Kotz are not for appellate review because of failure exceptions to file to the September adjudication. order and We do not agree. Rules Orphans’ pro- Court Pennsylvania 7.1 of
Section vides: time, shall and place shall be filed at such
“Exceptions form, disposition served and thereof copies be in such prescribe.” local rules shall made thereof as of different Orphans’ allows the Court clearly This rule are exceptions when and how to determine judicial districts therefore, court, pro- sanctioned different filed. This to be the Commonwealth. throughout cedures to be utilized this court by procedure promulgated Two other rules decide this issue. and necessary analyze Rules pro- Court Pennsylvania Orphans’ 3.1 of Section vides: rule adopted by provided by where otherwise
“Except Court, Assembly, an Act of Supreme Court, the local Orphans’ rule or order of general special Rule required by to Defendant and for the Notice except 1018.1, of notice shall which form of Civil Procedure rule or order of special by general if directed required only shall Court, practice pleading Orphans’ the local in the local practice equity pleading conform to the Amended November Pleas.” Court of Common 1, 1976. effective January Procedure pro- Rules of Civil Pennsylvania
Rule 1518 of vides: filing after notice of the (10) days
“Within ten any party be filed may adjudication, exceptions evidence, or find- to statements objections on rulings law, to the decree nisi or fact, to conclusions ings or conclusions of of fact findings where requests cases court to a failure submitted leave of law have been substantially fact or law matter of refusal to find separate set forth a exception Each shall requested. without discussion. Matters objection precisely unless, waived, prior are deemed exceptions covered by raising decree, exceptions to file granted final leave is these matters.”
The Local applicable Montgomery County Rule Court provides: Exception
“Local Rule 7.1A Generally. Decrees— exceptions “No shall be filed to orders or en- decrees tered in unless the proceedings thereto is right except rule, act assembly, by conferred (cid:127)expressly general order; by special and all decrees other than to which those taken, are so exceptions allowed be shall be final and definitive.” rule provides local shall exceptions only be filed
in those orders where to file is con- exceptions ferred by: enactment. Legislative court,
2. General rule of i. e. Pennsylvania Orphans’ Court; Court Rules adopted by Supreme 3. By special order of the court which issued the order or
the decree. court, This in Estate of McGrorey, supra, discussed the above rules and stated:
“Rule 7.1 Orphans’ of the Supreme Court Court Rules provides local exceptions filed as rules shall pre- scribe. In the of a rule, absence local contrary exceptions to an of the adjudication orphans’ court are authorized Rule 1518 of the Pennsylvania Procedure, Rules of Civil which provides that any issues which could be raised on are exception if no waived are exceptions filed. “Montgomery County has two rules to when relevant exceptions authorized. Local 75.1 rule states: “ ‘No exceptions shall be filed to orders or decrees in proceedings entered unless thereto except is expressly general conferred act of assembly, by rule, order; or by special and all decrees than other taken, those to which exceptions are so allowed to be shall be final and definitive.’
“Local rule provides: 75.2 “ adjudication ‘An shall be absolutely confirmed as of course, unless exceptions written thereto are filed with date of the (10) days filing
the clerk within ten after the However, shall in adjudication. exceptions such but no event raise could have been were questions *6 to the claims by objections by not raised account ”1 the at the audit of account.’ presented together, the rules it is “Reading apparent two authorized in this adjudication to nisi were exceptions the decrees, The rules between orders and to distinguish case. the to exceptions not filed unless may conferred, and to which adjudications, is except expressly Here, filing. are authorized within ten of days exceptions designated court orphans’ expressly the decree of the was Nisi.’ ‘adjudication adjudication, by an confirmed A nisi terms, contemplat- order or as its cannot be a final decree 75.1. ed rule was order not a final adjudication
“Since
nisi
were
to
decree,
pursuant
thereto
authorized
exceptions
3.1. When excep-
Pa.R.Civ.P.
and Sup.Ct.O.C.Rule
1518
days,
adjudication
were not
ten
the nisi
tions
filed within
therefore,
and,
appeala-
rule 75.2
pursuant
became final
to
However,
presented by appellant
now
ble.
all the issues
prior
to the account
objections
were raised
her
therefore,
and,
could have been
sub-
adjudication
nisi
failed
Having
to rule
exceptions
of
75.2.
ject
pursuant
rule,
file
local
the issues here
exceptions,
permitted
may
are deemed waived and
not be
presented
appellant
3.1 & Pa.R.Civ.P.
argued
appeal. Sup.Ct.O.C.Rule
on
1518;
(1977);
Pa.
A.2d 1259
Estate of
Stanley,
(1977);
470 Pa.
A.2d 1261
Estate of
Humphrey,
(1975);
Banes,
461 Pa.
In the instant case September adjudication “opinion Therefore, called sur petition.” and decree we must determine whether that is the “opinion decree” type exceptions order to which be filed preserve must issues for review. appellate supra, Our rules and McGrorey, make clear that local given precedent rules determin- ing requirement filing exceptions. County rules of ex- Montgomery prohibit filing statute,
ceptions except where general rule of court or special order of court exceptions. confer to file The first and third are not options to this case as applicable there are no statutes or special orders requiring filing It is that 3.1 exceptions. urged Pa.O.C.Rules and 1518 of the Rules of Civil Procedure are “general rules” applicable and, therefore, of order type require the filing exceptions. We do agree. As stated “In the above: *7 rule, absence of a local contrary exceptions adjudica- to an tion of orphans’ the court authorized Rule 1518 of Pa.R.Civ.P. [Pennsylvania Rules of Civil Procedure].” supra. McGrorey,
To call every untitled order “nisi” and within 3.1 Pa.O.C. and 1518 Pa.R.Civ.P. would frustrate Pa.O.C.Rule 7.1 and this clear court’s govern mandate local rules should orphans’ court matters. It is the nature necessary clarify of the “order” to determine any exceptions whether were case, necessary. the order determined (1) joint right with of not survivorship was severed and, therefore, mortgage in includable the estate of William (2) Kotz and the widow could elect against husband’s share of the joint confir- tenancy. Unlike nisi mation in McGrorey, no further action court orphans’ is contemplated concerning these issues. The only future ^action is the attempted enforcement to her by Mary Kotz as
right to elect. case,
Under the circumstances of this we believe September order and, was not nisi in adjudication nature therefore, the local rule prohibits Montgomery County filing exceptions. final, also we must the order to be
Having determined review. for appellate are preserved all issues conclude Merits C. in below erred that the court argues Kotz
Virginia owned property real against the widow to elect permitting with joint as tenants and the decedent Kotz Virginia eight was purchased survivorship, property marriage. to the decedent’s prior years Kotz, Kotz, and Decedent, Lydia Virginia The facts are: Montgom- of real estate mother, joint owners their were in 1958. The mother died to 1959. from 1948 ery County property piece sister sold this and his The decedent proper- Road the Warminster purchase proceeds used was a to this property The title dispute. ty presently of the At the time survivorship. with joint tenancy on mortgage took a and his sister decedent purchase, decedent one with both was a mortgage property. also establishes The record being obligated. his sister income suffi- with the only person that decedent was After the death mortgage payments. to make the cient mortgage aby off Kotz, mortgage paid William policy an insurance from money as well as policy, insurance and addi- beneficiary, life, with his sister on decedent’s December Kotz. On money paid by tional estate of her administratrix appointed Kotz was Mary filed a 26,1976, petition August Mary husband. On portion husband’s the inclusion her seeking a citation or that she in his estate Road the Warminster *8 conveyance. elect that against allowed to was not property that the court determined The orphans’ Kotz but that Mary William Kotz in the estate of included 6111 df pursuant “conveyance” § take against could provides: which Code, 20 Pa.C.S.A. § the Probate aby person of assets conveyance “(a) general.-1 —A will, power or a by appointment who retains a power thereof, principal over the consumption revocation or treated as surviving spouse, be shall, of his at the election a testamentary disposition so far as the surviving spouse is concerned to the extent to which power has been reserved, but the surviving spouse shall income beneficiary whose interest in income becomes vested in enjoyment prior to the death of the conveyor. provisions of this subsec- tion shall not apply any contract life insurance decedent, a purchased whether in by payable trust or otherwise, not to employee death benefits described in section 6108 this (relating designation code of benefi- ciaries of or death employee insurance benefits testa- whether mentary), payable in trust or otherwise.” 6101 defines: Section “ Means an ‘Conveyance.’ act which it is intended to create an interest in real or personal property whether the act is intended to have inter vivos or testamentary opera- tion. as used in Except (relating section of this code to conveyances to defeat it rights), marital shall include an act a power which of appointment given whenever is 30, 1972, exercised.” Act of June P.L. No. § eff. July
Mary Kotz, the surviving spouse, successfully argued orphans’ court that when William Kotz purchased War- property minster with his as sister tenants with that an “act survivorship purchase was created an interest in real property” and the husband retained will, “a power appointment power revocation or consumption over the principal,” thereby al- her lowing to take against property. argues the orphans’ court erred in 6111 to property purchased by § husband wife
applying prior to his or her marriage.
The orphans’ purchase court treated the of the Warmin- ster property by decedent and his sister as an “act which it is intended to create an interest in real personal is whether the act intended to have inter vivos or testamentary operation.” 6101 supra. *9 in 6111 with its defini- “conveyance” the work
Replacing § to create an act intended reads: “an provision tion the who retains a personal property by person in real or interest will, a of revocation power of appointment by a power ” . thereof. . . over the consumption principal of Probate is a re-enactment § 6111 of the Code Section 10; 100, 24, 1947, P.L. Act, April the Estates Act of § of 164, 3, July No. eff. 30, 1972, P.L. June § “conveyance” 301.11.2 The definition 20 P.S. formerly § Act of 1 of the Estates a re-enactment is also § 301.1.3 supra, formerly P.S. § Estate, Pa. court, in Schwartz This 11 of the Estates intent of (1972), legislative stated the Act of 1947: 11 of the philosophy . . The obvious Section
“. law, Montague the common 1947 as well as Estates Act of is to a (1961), prevent A.2d 103 an through his wife disinheriting from indirectly husband over the use retaining while control inter vivos transfer As his lifetime. property during of the enjoyment 11 of the the official comments Section noted the surviv- 1947, the section preserves Estates Act of in the decedent’s assets to share ing spouse important rights has retained ‘where the decedent Schwartz Es- added ownership (Emphasis at death.’ [in by person “(a) general. conveyance retains a assets who 2. In —A will, consump- power power appointment by or a of revocation thereof, shall, surviving principal of his at the election tion over the testamentary disposition spouse, as the surviv- so far be treated as a power ing spouse has been extent to which the is concerned to the reserved, surviving spouse to the shall be but the of the any beneficiary interest in income becomes income whose conveyor. provi- enjoyment prior to the death vested apply to contract of life shall not sions of this subsection decedent, payable purchased in trust or whether insurance otherwise. “(2) ‘Conveyance’ intended to create an act which it is Means personal whether the act is intended to an in real or interest Except testamentary operation. as used inter vivos or have power appoint- which a Section it shall include an act ment, given, is exercised.” whenever tate]). such cases the law treats the husband as the If, however, of the property (cid:127)owner his lifetime. during *10 the husband makes an outright gift which divests him of so the any possible interest can no property longer benefit, to his in inure our law or nothing case statutes allow would his widow to claim of this part property.” Schwartz, The dissenting opinion in while disagreeing with the application of 11 majority’s to the facts of that § case, copiously discussed the of legislative intent behind 11§ the Estates Act of 1947:
“The Joint State Government Commission which drafted the Estates Act 1947 explained of of purpose Section 11: ‘This preserves section for the surviving spouse to share in the decedent’s assets where the decedent has retained important ownership at rights death. in Rights surviving spouse such circumstances have been in recognized However, other states. . . . Pennsylvania given has to opportunity surviving little to when spouse share title legal passed has from the decedent death. prior Indeed, to . . . situation Pennsylvania has been such that it was stated correctly who, that “It is husband, only stupid against his wishes, would be forced to allow his wife to his share in ’ personalty”. 1947, . of April 24, . . Act P.L. amended, 11, as 20 301.11 (Commissions’ § P.S. Com- (citations ment) omitted). Estate,
“In Pengelly 374 Pa. 97 844 (1953), A.2d Court observed that ‘the is Act confirmatory [Section 11] of a long public existing policy to Commonwealth protect Id., rights widows.’ Pa. at at In Behan A.2d (1960), we held that an inter trust vivos which retains a special husband testamentary power appointment is to explored Section and there ex- fully and plained 11: legislative purpose Section ‘The mis- chief be remedied and the reason for the new law are being clear. Wives are unfairly deprived of a share in their husband’s transparent trust a personal property by his
device which retain control of permitted a husband at the time his wife legally deprive same property, 318-19, at A.2d at just her therein.’ Id. rights marital addition, added). we Tt also observed: (emphasis husband, prevent is clear that passed Section otherwise, surviving from his intentionally defrauding wife marital an inter vivos trust of her of revocation or power consumption contained a For appointment by will. power general special protect pre- centuries the law has a wife and sought serve for in her husband’s her some share —the dower, more intestate Acts recently ancient Acts. has been a in this Pennsylvania laggard Wills However, Wills, Dece- field. field of Trusts and *11 Estates, rights recog- dents’ a wife’s have been always children, nized than or higher as or relatives Id., 321, 399 friends or charities or Pa. at 160 legatees.’ Estate, A.2d 214 cf. (emphasis original); Montague at 560-61, 103, 558, (1961).”4 403 170 A.2d 105 Pa. had opportunity This court has not the to determine the successor, the Act or its 6111 of 11 of Estate applicability § § Code, premarital to facts of a convey- Probate ance.5 Estate,
This clear supra, court made in Schwartz Estate, purpose Behan intent and supra, legislative protect just was to denied in their spouses being from shares deceased To husband’s wife’s estates. effectuate permits the to treat purpose, legislature surviving spouse testamentary any which other act property spouse create an in real or personal property,” “intended to interest Estate, Pa., 317-321, 209, supra, pp. 4. See Behan’s 399 160 A.2d for a copious legislative intent of Act. § discussion of 11 of the Estate Estate, 112, Estate, 600; See 5. Schwartz Pa. 295 A.2d Huested 57; Estate, 209; 185, 314, 403 Pa. 169 A.2d Behans 399 Pa. 160 A.2d Estate, Estate, 506, 514; Horstman 398 Pa. A.2d Henderson 513; 892; Estate, 99, 215, Pa. 149 A.2d 384 Pa. 119 A.2d Brown Estate, 380; Estate, 391, Pengelly 374 Pa. Latolla’s 110 A.2d 358, 844; 192, Pa. A.2d McKean’s if “a will spouse power such retains appointment power consumption revocation or over the principal.” Although the of the Warminster Road purchase property appear the decedent and his sister to mechanically would fit we think language, do not statutory applies § premarital conveyances. Statutory (Act 3 of the Construction Act of 1972
Section 230, 6, of November P.L. No. added December effective), No. imd 1924 pro- 1 Pa.C.S.A. § § vides: preamble
“The title of a may statute be considered in the construction thereof. shall be construed to Provisos limit rather than to extend the the clauses to operation of they Exceptions expressed refer. in a statute shall The headings prefixed construed to exclude all others. titles, articles, parts, chapters, sections other divi- sions of a shall statute not be considered to control but by used aid in the may construction thereof.” (Empha- sis added.) not
While 6111 is controlling, heading “Convey- § ances to Defeat Marital as an Rights.” Using title aid to determine meaning we believe the statute’s aim to prevent is “conveyances” during marriage which of an interest deprive spouse and not trans- property actions that eight years prior occur When the marriage. occurred, purchase the Warminster Road it did impinge defeat one’s marital rights. *12 The proper interpretation requires of 6111 that we limit its application “conveyances” during marriage. This lim- iting interpretation does negate this court’s change previous decisions and expressions support of strong for surviving rather spouses’ rights, it continues that strong but policy instances where that recognizes policy has no application.
The decedent created no interest which de- feated any surviving marital of his spouse. Term,
Order and decree at January No. are reversed. of A. Appeal Mary
II. No. 691—
below
Kotz,
the court
argues
Appellant, Mary
right
with
of
tenancy
joint
to sever the
failing
erred
dece
Kotz and
Virginia
between
existed
survivorship that
at
is
appellant’s argument
of
Kotz. The basis
dent, William
property,
Road
the Warminster
purchase
the time of
mortgage
Kotz executed
William
is
the execution
argued
It
property.
price
purchase
necessary
“unities”
one of the four
destroyed
mortgage
this
thereby
survivorship,
with
joint
tenancy
for a
in common.
purchase
the time of
at
creating
(1941):
“. . . unity ‘the unity: as a four fold this quality described unity and the title, the of time interest, unity unity words, tenants have one joint or in other possession; the same interest, one and accruing by the same time, and at and the same commencing one conveyance, ” omit- (Footnotes same possession.’ one and the held Proper- to the Law of Real ted.) Introduction Moynihan; (1962). ty case, Blackstone, applied
The above definition the same his sister had decedent and demonstrates clearly interest received they interest in the property, time, at the same it commenced conveyance, same the same possession. survivor- tenants with
The mortgage
and it contrasts
of the “unities”
destroy any
does not
ship
has deemed
tenant
this Court
unilateral actions of one
Les-
Davidson’s
unities.
necessary
to destroy
sufficient
Lessee v.
(1799); Simpson’s
A.2d 444 (1959); re Laredon’s 439 Pa. (1970).
A.2d 763 Order Term, and decree at No. 677 January reversed. Term,
Order and at No. 691 January decree 1977 are affirmed.
Each to bear own costs. party NIX, JJ., in the join opinion
ROBERTS court and file separate concurring opinions.
MANDERINO, J., concurs in the result.
ROBERTS, Justice, concurring.
I join the I write note opinion Court. only 20 Pa. C.S.A. has since Act repealed by been § April 18, 1978, P.L. new election scheme has § see, been adopted by Legislature, Pa. 2201 et C.S.A. § seq. The new scheme a provision includes election against
Property conveyed by the decedent during marriage to himself another or with right others of survivorship to the extent of in the any interest power decedent had the time at the of his death unilater- ally to or in fee. convey absolutely 2203(a)(4) added). Although C.S.A. (emphasis presents situation, case different factual provi- sion, where applicable, requires the same result we clearly reach today under §
NIX, Justice, concurring.
I am in full accord with the Opinion result reached of the Court wish but to indicate that I do accept Opinion’s that the implication result would have been other- wise had the marriage preceded joint creation of the tenancy. Opinion pre-marital holds that a Today’s creation of a joint does not create of a favor tenants, marries subsequently who one of
person *14 joint which is the concerning tenancy. elect surviving spouse may of whether question created
against
during marriage by
party
explicitly
deceased
and a third
reserved
spouse
Righter
Righter,
v.
Thelma Selet. Supreme Pennsylvania. Court
Argued Jan. 1979.
Decided Oct.