*1 Storey, Storey, Bailey S. him Rupp, W. & Rupp appellant. B. Paul and John for J. Pearson, Segelb'aum, Deputy Attorney Horace A. General, Attorney ap- with him Frank F. Truscott, General, pellee.
Opinion Per November 1954: Curiam, of the court below is judgment affirmed on the Neely. opinion Judge
Way Estate. *2 1954. Before C. April Argued J., Steen, and Ae- Musmanno Jones, Bell, Chidset, Steaene, JJ. NOLD, W. with him William Lithe,
F. Windolph, Lyman & Windolph Johnstone, Burkholder n. Clay appellant. Miller and
R. him R. Paul John Campbell, *3 Campbell appellee. & Miller, by No- M. Stearne,
Opinion Mr. Justice Allen 1954: vember 15, Orphans’ not the is whether or pivotal question of a the
Court has determine sole beneficiaries two by written executed compromise under settlement separate wills. the proportions parties stipulated the agreed One of should be distributed. which decedent’s estate the agreement alleging them repudiated subsequently been induced to execute the document she had The court be- misrepresentation. fraud and through con- The appellant against allegation. low found juris- Court does possess tends that the the litigation since question to decide this diction must and that issue persons living two between This conten- pleas. common the court of relegated the Legisla- enactment of contrary specific tion Superior this and the decisions numerous ture and Court.
Appellant fails to distinguish agreements between by executed all in interest parties a decedent’s es- tate to its relating and where the DISTRIBUTION, dispute is between a distributee and living person no involving distribution decedent’s question of es- tate. Such controversy latter between living persons, foreign to a being distribution of the estate, decedent’s must necessarily be court of relegated common pleas.
The facts are condensed in printed rec- unduly ord. The undeleted facts, as found however, auditor are appear record and original approved by the court. The condensed facts found audi- tor are: “Alvin J. died testate a resident of Way of State Borough Centre County, College, Pennsylva- November nia, 1948. left a 18, decedent last will and testament dated May 17, wherein he gave all of his estate unto Hazel Keller, provided she took of him good care his during lifetime, which will probated the office of Wills of Register Centre County, 1950. Pennsylvania, January Hazel Keller entered into a written article of agreement dated November Robert J. son of the Way, to a agreeing decedent, wherein should receive estate; inter that she and, alia, 35% would not contest of a probate last will previous *4 and of testament said decedent dated August 1929. 17, That the to attorney' selected settle the differences Hazel between Keller Robert arising Way was the n Miss of Kéller’s choice. Hazel attorney Keller and Way specifically Robert J. the sought services of Mr. a- member the of Centre Dunaway, County Bar, adjustment reach an amicable of their respective rights of Alvin the estate J. deceased. The Way, said par- did enter into the written of agreement ties November for distribution 1948, providing as between the par-
425 insofar as the carried out ties which was partially There furniture were concerned. items of household to sign no induce Miss Keller was fraud employed her understood and she distinctly such agreement, at the Hazel agreement. Keller, under such rights a per- time of the execution of was agreement, the of such 21 Under terms years. son over age net es- Hazel Keller is to agreement get 35% either parties mutual mistake of the tate. There was no of said fact or in at time the execution law to com- been entered into the same having agreement, be- litigation their differences and avoid promise of 1929 and over the wills parties respective tween the the result above referred to is 1934. The of both Miss Keller and the expressed purposes but their differences se- compromise Kobert J. toWay Keller that could the best Miss curing settlement into court.” These findings, without going be gotten are abundantly record, those original including not be and should dis- testimony supported A. 320 182 Pa. 394; Harbaugh’s turbed: A. Pa. 382. Ct. Superior Istocin’s for ample and court had support the auditor That A the rec- reading of apparent. their is most findings as to judgment credibility their ord confirms 1929 was August will probated witnesses. pay- provision After drawn. professionally expenses funeral care debts and ment of residue of the estate is devised cemetery lot, appellee herein. He decedent’s son, bequeathed executor. There existed most appointed also father and son. between relation friendly pro- six line subsequently paper, May 17, It reads: will, holographic. aas bated
“State Pa. College, May 17, “This at the of J. that death Alvin certify Way Hazel Keller is to all his estate, providing have she takes care of good Alvin J. his Way during said life time. Alvin
(s) Way” J. While this document on its un- duly if face, proved, questionably constituted there is testi- will, ample if would mony, which invalidate the docu- believed, ment as a upon grounds will in- testamentary undue influence and capacity, fraud. Decedent was at aged seventy-eight years appellant then death; decedent been thirty-nine; had at appellant’s “boss” college she came to live with dece- borough; dent and his wife as a roomer or after boarder; death wife’s appellant became decedent’s “housekeep- she continued as er”; such from 1930 to decedent’s death 1948. There is that suf- testimony decedent from fered a severe heart attack and also had cata- racts from eyes. removed both surgically Appellant read to obliged to decedent. She had and used a from attorney letter decedent and busi- transacted At ness him. prior sometime to decedent’s death consulted decedent’s appellant she him lawyer; showed paper 1934; lawyer testified he told it like her looked a good but that he will, thought lot “would have a of trouble with it”; he testified that he he this because had heard rumors a meretri- cious relation between existing appellant decedent would likely the son claim there had been undue influence. There was positive testimony, de- nied appellant, flagrant instances actual moral it was asserted that misconduct; decedent appel- together lant lived as husband and wife. The de- selected both lawyer, cedent’s em- parties, was *6 that He testified to settle decedent’s estate. ployed to appellant cent the estate thirty-five division of per succeeded him if appellant because suggested in that a common law establishing she was wife estate. entitled to of decedent’s would be one-third did “she further said lawyer appellant testified to do not into but she wanted go want what court, going was to the best settlement she could without get It decedent’s why into court.” understandable also Ordinarily any son be willing compromise. would a par- besmirching child will desire to avoid publicly community in the small reputation, especially ent’s where decedent lived. of November
The covenants the agreement 1948 are: to the agrees [ap
“1. The [son, appellee] pay after the execution of as soon as pellant] practicable this an amount equal thirty-five (35%) Agreement, the net devised per cent of estate and bequeathed him in the above mentioned will, by [decedent] All per net to be determined follows: (a) estate than to the other sonal property belonging estate, be household shall jewelry furnishings and clothing, therein, All real estate be included (b) shall included shall be at the therein and this appraised purpose estate, market real From fair value of said present (c) and estate as determined Paragraphs (a) gross be all debts owing by shall deducted (b) above [dece Cemetery to the Pine Hall Asso the bequests dent], amount Hundred Dol ciation in the of Two ($200.00) how attorney lars inheritance taxes and fees; and all for an. com there shall no deduction executor’s ever, mission. hereby further [son, appellee] bargains
“2. The all and to the [appellant] releases gives sells, be- furniture, furnishings equipment household longing to the Estate of situ- presently [decedent] ated premises at South Frazier State Street, College, for a Pennsylvania, except certain articles few to be specially agreed upon between the hereto. parties
“3. The [appellant] not agrees she will pre- sent claim any for services rendered her to or on account of and she further that she [decedent], agrees will not contest the probate of the above mentioned last Will and Testament of dated [decedent], August 1929, and she further agrees that she will now at any future time make any claims to a share *7 of Estate or attempt probate to any paper [decedent] or papers purporting be a later writ- testamentary ing for [decedent], except as rights are given her in this agreement.”
In violation of her duly executed and sealed cove- nants, appellant repudiated her agreement sought to cancel it; appealed from of the 1929 probate will and caused the of 1934 paper to be The probated. record discloses that of the 1929 probate will was not but revoked, “opened” merely to let 1934 will. The grant letters to the son as executor of decedent’s estate was never or revoked. vacated son, fiduciary, physical possession of decedent’s assets. He, properly accounted for them as therefore, executor. The of the duty Orphans’ Court to di- rect DISTRIBUTION If decedent’s estate. possessed jurisdiction it should pass on the of the If agreement. the agreement were valid the assets of the estate would be distributed in accordance with the agreement and not under either the 1929 or 1934 wills. on If, the Or- contrary, Court did not phans’ possess such jurisdiction, then award would be under the necessarily 1934 will. In the latter then event, appellee would be relegated to a suit the common assumpsit pleas.
429
the probate
after
1934 will,
The probate
not preclude
did
opened,
had been
1929 will
the prior
in accordance
estate
decedent’s
the distribution
the judge
probate,
contest over
In the
the agreement.
con
not be
could
that
ruled
correctly
af
The agreement
probate.
as preventing
sidered
In Carson’s
not probate.
distribution
fected
“. . .
(p. 121):
A.
we said
Pa. 117,
is
its provisions
regard
without
of a will
probate
the testator
the estate of
thing;
one
The former
is another.
with its terms
accordance
concern.
none of his
the latter
is
register;
for the
is
on distribu
and,
court alone,
is
Distribution
of the provisions
is the validity
and not before,
tion,
..
.”
passed upon.
to be
of a will
A.
Justice
Norris’s Estate,
that
.
course we do
hold
492)
: “. . Of
(p.
Linn
entitled
an
otherwise
instrument,
when
probate
on the
its
objected
ground
probate as a
will,
an alleged agreement
conflict with
are
provisions
probate
of property,
make a different disposition
the law
otherwise:
be refused on
may
ground;
On audit because the fiduciary before the Court Orphans’ in of the as- possession and was never been removed for before the court dis- the fund was properly' sets, in the were evi- tribution. Both wills and and the learned Court Orphans’ The auditor dence. Court Orphans’ possessed decided that the correctly Distribution was directed accordance jurisdiction. the agreement. 430 has
There been an Orphans’ Pennsylvania since at least 1683. It was in Ch. early provided Duke LXXYII. of Yorke’s Book Laws 131: “That of the of each Justices respective County shall sitt Court, and take Care twice of the Es- every year, inspect of which shall Employment tates, usage, Orphans, third Orphans’ be called The and sitt first Court, first of month day ye weeks, eighth yearly; for may That be taken that are not Care able those, take care themselves.” Act
Under the L. 20 P. 206 sec. May 19, 1874, 1, PS Legislature county enacted 2081, every there should a court to be known organized of record as the Orphans’ Court.
The Orphans’ a court of limited being juris Court, only exercises stat diction, power given by ute, expressly implication: Cutler’s necessary 225 Pa. A. Estate, 73 286 167, Cutter’s 1111; Estate, Pa. A. 134 Watson’s 314 505, 489; Pa. 170 179, A. Mains’s 254; 185 A. Mel 243, 222; 5 A. 2d linger’s Estate, 321. 180, Act June P. L. et 7, 1917, 363, PS 2082 all codified seq., previous acts respecting Court. The Act of August P. L. 10, 1951, PS et 2080.101 seq., largely the re-enactment of pre- vious of the Act of provisions supra. Since de- cedent died and the proceedings commenced prior date of Act effective viz.: January 1, prior legislative enactments govern this case. All acts respecting jurisdiction, are however, substan- similar. tially
Section of the Act of 1917, supra, provides: [e] “The of the several . . . courts, to and shall extend embrace . . . [e] [t]he ... the estates assets decedents....” (Italics *9 of the Act conferred specifically Section 9 supplied) [n] other “The exercise of all by stating: or needful which is powers to the doing anything in hereafter to be done may be or required permitted herein- powers said whether incidental to court, before enumerated or in addition thereto(Italics supplied)
In a there is no separate Orphans’ where county Court Orphans’ “composed judge, Court, .”: Act ... of the court of common . . pleas judges, 2084. of June P. L. 363 sec. 1 20 PS [c], 7, 1917, As as in Dundas’s early filed a beneficiary petition a a decedent’s estate a salé conveyance Court to set aside Orphans’ interest estate to a indi living of his a decedent’s fraudu He conveyance vidual. alleged refused to act obtained. The lently Orphans’ Court re jurisdiction. on the of lack of This ground Agnew It very “. . . versed. Justice said (p. 480): in a . . . that the Orphans’ Court, proceeding clear, kin next of distribute an estate among legatees, into has and determine ample power inquire heirs, dis of a directly way all questions standing In the these parties.” supplied) tribution to (Italics Agnew Justice Chief Justice opinion quotes Jeremiah H. in Whiteside v. who Whiteside, Black . If death 474): anything “. . there be besides (p. it is that the Orphans’ which is not to be doubted, ascertain the amount of authority Court alone has decedent’s, and order its distribution property among Agnew Jus entitled to it.” Justice also'quoted those Pa. he. in Kittera’s where tice Lewis . all questions : “. . The decide 423) power said (p. to a distribution of the fund follows proper: necessary and rests in the power distribution, . :.” the jurisdiction. incident necessary Court, *10 Appeal, In McGettrick’s an intestate share claimed under a deed attacked as fraud- which was ulent. that it Court held did not have Orphans’ jurisdiction to of the deed be- pass upon validity This Court reversed. tween Justice living persons. “. It (p. 12) : . . is, course, undisputed Green the Orphans’ Court has jurisdiction exclusive distribute the estates of decedents those entitled among to them. Such includes the necessarily power and the duty to ascertain the persons to whom distribution must be made. When the share of one iswho entitled apparently is claimed by another, proceeding dis- claim must be established in the tribution, and as it must be there so it established, be there may impugned. There is no occasion to re- sort to other any or to other court, any proceeding, determine the validity of the as claim, the Orphans’ full has power and procedure adequate to dis- pose of the controversy. If a deed or other instrument set as a up muniment of title for the interest of a an attack distributee, upon its is in no re- an spect impeachment of it in a collateral proceeding. A deed is not a nor the proceeding result of one. It is not a judgment of a nor a decree of court, any spe- partes, It is but an instrument inter cies of tribunal. higher given has no sanction than can be to it the act the parties.. As such it must abide the tests voluntary all contracts.. It is as liable to therefore impeachment any other contractual rela- form of necessarily subject and tion, to be invalidated when- proffered ever it is to a right. tribunal as a basis aof These considerations are and the fundamental, authori- prove judgment ties which that the a Court cannot impeached collaterally, obligatory and is therefore upon an have auditor, no application.” (Italics sup- . plied) King’s 64 A. Or-
phans’ Court decided that a of interest conveyance in fact given absolute on its beneficiary, face, collateral. The court the share to merely as awarded less the amount of the debt. distributee, contested the grantee
Court on the
was between
ground
transaction
This
Justice Pelo
persons.
Court affirmed.
living
*11
“. . . The
not
(p. 61):
orphans’ court would
have
jurisdiction to decree
original
specific performance
of the
to
but
it had
agreement
jurisdiction
reconvey,
created and
by which the fund was
proceeding
jurisdiction
exclusive
of all matters
to the
relating
distribution of this fund. The
to distribute
in-
power
cludes the
to decide all
power
necessary
questions
distribution: Dundas’s
73 Pa.
proper
474;
McGettrick’s
Dickinson’s Estate,
Appeal,
9;
In
Patterson’s
11 A.
there
Appeal,
and an in-
was will contest which
successful
proved
an
testacy resulted. Certain of the heirs entered into
prior
respect
to the will contest with
their
shares
the event the will was annulled. This
.
15)
Court held
: “.
.
heirs
the decedent who
(p.
are
not affected
and
parties
by
covenants,
not
are
its
in the
are entitled to their
shares
es-
they
respective
provided by
and to the remedies for
tate,
recovery,
the covenant
parties
intestaté laws.
could
and
of the real
partition
estate,
sale
prevent
covenant
for them to. assert
place
their
proper.
Those
of the proceeds.
in the
rights
Colestock
Minerva
covenanted with
who
in the will,
to her
the land devised
should have
are not now
same,
interest
to her their
released
from sale
arising
of the money
take any
entitled to
should
no distribution
They
of that
land.
agreed
given
the estate
them of
any part
be made to
disregard
It
error to
to a
relation.
blood
will
dis-
arising
to all
foreign
questions
covenant
supplied)
tribution..” (Italics
Mr.
According Dictionary, to Black’s Law Second Edi- family constitutes tion, “all who live one house “‘[fjamily may under one also head”, mean children, wife or the children, blood-relatives, members according the domestic circle, the connection in ” which the word is used.’ Dictionary, Bouvier’s Law Eighth Family, parlance Edition: in common consists pater- “of those live under who the same roof with the expression great flexibility. is one of familias.” may “any group constituting It include a distinct do- body.” Collegiate mestic or social Webster’s Diction- ary, Family: body persons Fifth Edition: “The who one live in and under one house, head; a household.” In Beilstein v. Beilstein, A. this family. Court defined word Justice Mitchell
437
155) “Family
a
...
it is
(p.
word
:
is
a technical
not
very
if not
In a
common,
children.
broader word than
persons
of
all the
it includes
the most usual sense,
dwelling together
household,
one
are
blood who
same
many
blood
the same
even the condition
cases
and
supplied)
(Italics
requisite,.
. .”
not
is
Family agreements
are favorites
settlements
or
fairly
not be disturbed:
made will
the law and when
A.
Disston Es-
6
2d 511;
The was not probate pellant’s agreement, compromise, not to paper not unlawful. The 1934 1934 was document, manifestly questionable But if it document. even appellant per- was the since sole will, valid as were under and there were no testa- terms, in interest its son provisions appellant mentary restrictive therein, releasing waiving precluded her interest from correctly judge hearing so ruled: thereunder. A. Pa. 36 2d 786. Martin appealed from is affirmed. to be Costs The decree by appellant. paid Opinion
Dissenting
Mr. Justice
Arnold:
PS
Court Act
§301,
enlarge
20 PS
did not
§702,
§2080.301,
§2080.702,
or diminish the
be-
court,
ing merely declaratory
prior
ques-
insofar as
law
*15
directly
way
standing
tions not
in
of
the
distribution.
Statutory
(4),
See
52
PS
Construction
Section
Act,
Pennsylvania
v.
46 PS
§552,
§81,
§581,
Eiffert
Brewing Company,
Superior
Central
141 Pa.
Ct. 543,
Department
Highways
The decisions under the
statutes establish
orphans’
power
ques
that the
court has
to determine
standing directly
way
tions
distribution. See
Appeal,
Dundas’s
Way filed his account as executor under the first but whether as will, administrator c.t.a. or de son tort any he does not state. authority event he had no except to do for distribution balance anything and then second pay accordance with the will, of her sue Miss Keller the common for breach pleas agreement. by Way of distribution
Nothing way stood since there fiduciary assignment any part was no Keller of fund to nor him, any charge by Miss him any payment out of the fund. If agreement means it Keller means that to Miss anything Way pays of Ms share under the first will. Since 35% first will failed he cannot perform. now situation
Actually
is one in which the
Court of Centre
undertook to award
County
damages
Way
for the failure of
Keller
her
Miss
to perform
contract with him.
court has
Ordinarily
no jurisdiction to determine distribution between liv-
ing parties under an
made
them. This
*16
can be determined only
a
trial. Cf.
by
jury
Murphy’s
vided accident no fraud, there found that was court phans’ theAt such agreement. mistake the execution of the personal all of the agreement, time of the signing administrator, the in the possession was property in the appellant’s was ring one diamond which except of fraud, “In the absence The Court held: possession. and sealed agreement mistake the written accident or disabilities under no legal of full age of persons appellant has, disregarded. may from the herself agreement, precluded execution dis- properly was The petition relief which she seeks. “it is also clear that But added missed.” in which the appropriate proceeding this is not ” must await estate which a decedent’s distribute notice to creditors without petition was audit; legal and would be without or other interested parties Di- in the In other supplied). words, effect. (Italics the assets of decedent were Paola Estate and the petitioner-appel- hands his administrator, out of the estate and these assets lant sought get barred virtue of into her own hands. She was court which Thus signed. the claim of the to determine whether bar and held that distribution, to the appellant it not. an here. second will estoppel
Nor was there after the pro- for probate only days was offered citation Way. of the first will and a issued on bate *17 deleterious of position by there was no change Hence Keller’s exception Way’s Nor did Miss the appellant. of au appointment and the request estoppel. an She was forced to file ex- auditor raise and she right ceptions distribution, of an auditor to pass upon appointment for the ask raised the constantly question She the questions. upon court had pass no I dissent. agreement. accordingly Mr. Chief in this dis- joins Justice Hobace Steen senting opinion. Appellant. v.
Waschak Moffat,