Atlee's Estate, In re

• Decision Date: 13 March 1962
• Parties: In re ESTATE of Washington L. ATLEE. Appeal of TOCCOA FALLS INSTITUTE.
• Court: Pennsylvania Supreme Court

Page 722

178 A.2d 722

406 Pa. 528

In re ESTATE of Washington L. ATLEE.

Appeal of TOCCOA FALLS INSTITUTE.

Supreme Court of Pennsylvania.

March 13, 1962.

Edward Kassab, Chester, for appellant.

Myron Jacoby, Jacoby & Maxmin, Edward F. Hitchcock, Henry W. Maxmin, Philadelphia, for appellees, Third Presbyterian Church of Chester, Pa., Administrative Commission of Third Presbyterian Church and Presbytery of Philadelphia.

James L. Rankin, Chester, individually and as executor of Washington L. Atlee Estate.

Before BELL, C. J., and MUSMANNO, JONES, COHEN, EAGEN and O'BRIEN, JJ.

JONES, Justice.

W. L. Atlee [decedent], a Delaware County resident, died testate, on December 15, 1958 and letters testamentary were issued to James L. Rankin.

Only two paragraphs--paragraphs 10 and 11--of decedent's will are presently pertinent. In paragraph 10, decedent gave to the Third Presbyterian Church of Chester, Pa., [Church] 'a full ten percent of all the residue of [his] estate' stating that this bequest 'shall be void in the event that I am not a member of said Church at the time of my decease, and it shall also be void in the event that said church as of the date of my death is not holding regular church services in its present location on the North side of Ninth Street between Upland and Potter Streets, Chester, Pennsylvania:' decedent then directed that, if the bequest became effective, no part thereof should be used to purchase a new church site, to pay the cost of such acquisition or of any improvements erected upon such new church site: decedent directed 'that said bequest and all income derived therefrom shall be administered by the Session of said Church and shall be used exclusively for the preaching of the Gospel, the teaching of the Bible, preaching missions and evangelistic services in Chester and elsewhere.'

Paragraph 11 provides that: 'In the event that the bequest contained in [paragraph 10] to the [Church] shall become void, I direct that the said ten percent of the residue of my estate * * * shall be given to and equally divided among Toccoa Falls Bible Institute * * *, the Fuller Seminary * * * and Presbyterian Children's Village * * *.'

The executor filed his first and final account in the Orphans' Court of Delaware County which was audited on November 2, 1959. At the time of audit, the court was informed of the undisputed facts that decedent at the time of his death was a member of the Church and that the Church was holding regular church services at its location on the north side of Ninth Street between Upland and Potter Streets, Chester. On November 23, 1959 the court confirmed nisi the account and awarded, inter alia, 10% of the residue of the estate to the Church in accordance with paragraph 10. No exceptions were filed to that account and, on December 8, 1959, the account was confirmed absolutely.

On February 15, 1960, the executor filed a petition to amend the adjudication wherein he sought to cancel and revoke that part of the adjudication which had made an award of the bequest to the Church. The basis of this petition was that the members of the 'corporation' of the Church at a special meeting and the trustees had voted to reject the bequest to the Church. Upon filing of that petition, the Presbytery of Philadelphia [Presbytery] as the superior judicatory of the Church requested permission to intervene and this permission was granted. The Presbytery and its Administrative Commission [Commission] filed an answer in which they averred, inter alia, that the Session of the Church, the superior constituted body of the Church under the Constitution of the Presbyterian Church of the U.S.A., had accepted the bequest and such action had been ratified by the Commission of the Presbytery. Answers to the petition were also filed by the three alternative legatees under paragraph 11 of the will, including Toccoa Falls Institute [appellant], each alternative legatee requesting a one-third share of the 'rejected' bequest. After the taking of testimony, the court below dismissed the executor's petition and directed the executor to comply with the adjudication of November 23, 1959 by making immediate payment of the bequest to the Session of the Church. On February 28, 1961, the executor delivered a check in the amount of the bequest ($48,568.70) to the Session of the Church and received in exchange therefor a Satisfaction of Award which is now filed of record.

On or about April 24, 1961, Toccoa Falls Institute filed an appeal to this Court. On October 27, 1961, appellees (the Church, the Commission and the Presbytery) filed a motion to quash the appeal. On November 3, 1961 we directed that such motion be heard at the time of oral argument on the merits.

The motion to quash this appeal is based primarily on two grounds: (1) Toccoa Falls, the sole appellant, has no standing to appeal; (2) the matter in controversy is moot.

The Orphans' Court Act of 1951 provides that any 'party in...