261 Pa. 561 | Pa. | 1918
Opinion bx
Anna Weber, the testatrix, a widow, at the time of her death was the owner of a lot of ground in the City of Reading on which was erected a building in which she conducted on her own behalf two distinct enterprises, one the manufacture of paper boxes, the other the manufacture of badges, she owning all the machinery employed in each. Inasmuch as the present controversy relates exclusively to the management, control and final disposition of this item of testatrix’s property, it can be understood only as we here produce so much of the will of testatrix as expresses her direction in regard thereto. Testatrix died in 1905 leaving to survive her five sons and two daughters. In the first item of the will we find this provision, “They,” the reference being to her three sons, Henry C., James A. and Daniel, as will later appear, “shall collect all the debts due the factory and with the proceeds and the factory’s moneys in the banks pay all the debts of the factories, and should there not be sufficient money arising from the collections of the bills and the moneys in the banks, the-deficiencies shall be assumed by my sons, Harry C. Weber, James A. Weber and Daniel Weber, and should there be a balance over after making the collections and the factories’ moneys in the banks, and after paying the debts of the said factories, that balance shall be equally divided among my children.” Why this provision that the three named of her five sons should assume any deficiency in the assets of the factories to meet the liabilities of the factories will later appear. In the next following item we find this direction, “Item, I direct that the factories shall be run as follows. The Upper Factory shall be in charge of my son, Harry C. Weber, and the Lower Factory shall be in charge of my sons, James A. Weber and Daniel Weber. The profits of said Factories shall be equally divided among the said three children, Harry C. Weber, James A. Weber and Daniel Weber, who shall pay a rental sum to my sons, Herman Weber and Walter Weber, each the
“I do hereby order and direct that my son, Harry C. Weber, shall have the sole management of the financial matters connected with the said factory or factories and the business thereof. All contracts to be approved of by him and all moneys to be received and deposited by him and all checks and other obligations to be signed by him only. In case of the death of my son, Harry C. Weber, then the surviving sons running the factory or factories shall decide amongst themselves who shall assume the duties of my deceased son, Harry C. Weber. If at any time my son, Harry C. Weber, shall desire to withdraw from the firm, then my sons, James A. Weber and Daniel Weber, shall have the first right to purchase the share of my son, Harry C. Weber, the amount to be determined by an honest appraisement of three disinterested persons.
“However, should any or either of my sons, Harry C. Weber, James A. Weber or Daniel Weber die, then from the date of such death the share of the profits of such deceased son or sons shall be paid unto his or their widow or widows, and if there be no such widow or widows surviving and there be children surviving, then such aforesaid share or shares of such deceased son or sons shall be paid unto his or their respective children, as the case
“If at any time my three sons, Harry C. Weber, James ' A. Weber or Daniel Weber, or the survivor or survivors of them, decline to continue the manufacturing business, or my said three sons are deceased, it is my will that the factory or factories shall not be sold as long as any of my other sons wish to run the factory or factories, and if my sons, Harry C. Weber, James- A. Weber and Daniel Weber, decline to run the factory or factories, and if Herman Weber and Walter Weber or either of them wish to run the factory or factories, they shall pay a monthly rental sum of twelve dollars per month to each of my said sons if living, or if dead, to their widows or children of such deceased son or sons as aforesaid, and to my daughter, Maud E. Weber, a rental sum of fifteen dollars per month in the manner and period of time as heretofore provided. Should neither of my said sons desire to run the said factory or factories, I do hereby direct my hereinafter named Executor to sell the said factory or factories at public or private sale for the best price obtainable, and I do hereby authorize, and empower my hereinafter named Executor to sign, seal, execute and acknowledge all such deed or deeds of conveyance as may be requisite and necessary for the granting and assuring the same to the purchaser or purchasers thereof in fee simple, and the proceeds of said' sale shall be equally divided among my children, Herman Weber, Walter
The rest and residue of testatrix’s estate she devised and bequeathed to her above named children, share and share alike.
Nothing in these several provisions relating to the factories gave rise to dispute or any expressed dissatisfaction. On the contrary, the disposition of the factories was acquiesced in, and the three sons appointed by the will to have them in charge and run them, accepted under the will, though- under no requirement to do so, and entered into possession and control, thereby taking upon themselves the burden and duty of observing such conditions and regulations in connection therewith as directed by the will. One of the sons, Harry 0., was made sole executor of the will; but it is to be kept in mind that he was charged with no duty as such executor in connection with the several factories so long as they were operated by any of the sons; it was for the sons to operate them in accordance with the directions of the will and no responsibility rested on Harry O. as executor in connection therewith. The firm, as testatrix speaks of the three sons thus associated, were to share equally in the profits and bear equally the indebtedness. There is not a suggestion in the will that testatrix’s estate was to be liable for any loss or indebtedness, or to be otherwise interested in the enterprise. Harry C. later on acquired by purchase the shares or interests of his brothers, James A. and Daniel, who were associated with him in the business, with the result that the sole and exclusive management and control of the factories thereafter was in himself. Later on he purchased the shares of Walter and Maud, so that as the case then stood the only outstanding interests weré those of Herman and Hattie Moyei’, and of these Herman, now deceased and represented by his widow, was under the will to receive as rental twelve dollars per month and Hattie
The petition prayed (1) that if sold Harry be restrained from making use of the''patronage and good will to avoid irreparable injury to the petitioners; (2) that Harry be removed from the executorship and trusteeship; (3) for a decree that circumstances have arisen whereby under the terms of the will the property is to be
To this petition Harry C., under rule, made answer, expressly denying every averment in the petition that charges him with a purpose in his management and control of the factories to prejudice the right and interest of the estate therein, if any such right or interest remains; he admits the main facts set out in the petition relating to the purchase by himself of an adjoining building wherein at his own cost and expense he has placed new and more improved machinery; he denies that he is at present, or has been at any time, a trustee of the factories or business therein conducted, but asserts that he holds the former as tenant under a fixed rental and is now the sole owner and proprietor of the business carried on, not denying his liability to account for the machinery that was in the factories, appraised at $1,275.00, when he first entered into possession, but insisting that he is the owner of the new machinery introduced at his own cost and expense, that he is the sole owner of the business, entitled to all the profits of the business, and that the will making it optional for him to continue the business requires him to account as executor for said factories only when he has ceased to exercise his option in connection therewith.
Certain testimony was taken which we have neither time nor spacé to review. Sufficient to say that it neither adds to nor detracts from the strength of either side as exhibited in petition and answer. Upon these alone the case might well have been decided. The learned judge of the Orphans’ Court, in an opinion amply justifying his conclusion, held the case to be with the respondent and accordingly dismissed the petition. The assignments of error on the appeal are fourteen in number, the first of these presenting the real controversy, and except as this can be sustained the remaining assign-