In re Markle's Estate

• Decision Date: 17 October 1898
• Docket Number: 408
• Citation: 187 Pa. 639,41 A. 304
• Parties: Estate of George B. Markle, deceased. Appeal of John Markle and Alvan Markle
• Court: Pennsylvania Supreme Court

41 A. 304

187 Pa. 639

Estate of George B. Markle, deceased. Appeal of John Markle and Alvan Markle

No. 408

Supreme Court of Pennsylvania

October 17, 1898

Argued April 1, 1898

Appeal, No. 408, Jan. T., 1897, by John Markle and Alvan Markle, from decree of O.C. Philadelphia Co., Oct. T., 1898 No. 190, on bill of review. Reversed.

Bill of review.

Testator's will contained the following provision:

"And upon the further trust that, as each of my children shall arrive at the age of forty years, my said executors and trustees shall then pay to such child the one-third of one-fifth of the principal of my estate, freed and discharged from the trusts and limitations of this, my will, but in such payment or distribution such child to be charged with the principal of the amounts of the advancements I may have heretofore made or may hereafter make to him or her, as part of such payment or distribution; and as to the other two-thirds of the share of such child in the principal of my estate hereinbefore devised and bequeathed to my said executors and trustees for their use, and all moneys which may hereafter accrue to such child from my estate as hereinafter provided in the case of the death of any of my children without leaving lawful issue, I direct my executors and trustees to keep invested in the same manner as I have hereinbefore directed, and to pay the income thereof (subject to the proportionate part of the bequests, legacies, devises charges and expenses hereinbefore given and charged on my estate) unto such child (as it accrues) during the term of his or her natural life, but such income not to be subject to any debts, liabilities or engagements, heretofore contracted or which may hereafter be contracted, nor to any attachment or execution in any way whatever, and in the case of my daughters, Clora and Ida, such income to be paid to them free from the control and interference, and without being responsible, subject or liable for the debts, contracts or engagements of any husband either of them may marry, or for her own debts, contracts or engagements."

A subsequent portion of the testator's will is quoted in the opinion of the Supreme Court.

On June 14, 1890, the court decreed that John Markle, George B Markle, Jr., Alvan Markle, and D. Stuart Robinson, executors and trustees under the will of George B. Markle, deceased, be and they are hereby authorized and empowered to sell the interest of the estate of said George B. Markle, deceased, in the late firm of George B. Markle & Co. as follows: six sixteenths of the whole interest in said firm and business unto George B. Markle, Jr., Alvan Markle, and John Markle, for the sum of $248,373.53, and one sixteenth of the whole interest and business of said firm unto Ida Markle and Clora Markle for the sum of $41,395.59.

The said amounts as to the interests of the three sons to be charged against the principal of each one's share in the estate of said George B. Markle, deceased, the amount due by his daughters to be paid by them in money.

On July 5, 1890, the court amended the decree of June 14, 1890, as follows:

The amounts at which the said trustees are authorized to sell the interest of George B. Markle in the firm of George B. Markle & Co. shall be: six sixteenths to George B. Markle, Jr., Alvan Markle, and John Markle for the sum of $224,465.45, and one sixteenth to Ida Markle and Clora Markle for the sum of $37,410.90; and, except as hereby corrected, the said decree shall stand in full force and effect.

On March 28, 1896, the following decree was entered:

And now, this 28th day of March, 1896, this cause having heretofore come on to be heard on petition, answer, replication, and proofs, and having been argued by counsel and considered by the court, it is ordered, adjudged and decreed as follows: The decree both of June 14, 1890, and July 5, 1890, heretofore made, are sustained, saving to the extent of the following modifications:

It is ordered, adjudged and decreed, in modification of said recited decrees, that the purchase money payable by the purchasers to John Markle, George B. Markle, Jr., Alvan Markle, and D. Stuart Robinson, executors and trustees under the will of George B. Markle, deceased, be increased to the extent of $28,000, and that each of the purchasers shall pay to said executors and trustees his or her proportion of said additional purchase money, which proportion shall be that in which he or she took said interest of said estate.

And whereas, in consequence of an error in the entry of the decrees of June 14 and July 5, 1890, the executors and trustees did not collect from each purchaser under said decrees his or her proportion of the purchase money of said interests in said estate: It is now further ordered, adjudged and decreed that, to such extent as the said purchasers did not pay their respective proportions of the purchase money for said interests in said estate, they shall now pay into the capital of the said estate the several amounts which by the said decrees as hereby amended they are bound to pay, with the right, on the part of said executors and trustees, to collect from each of said purchasers the amount of his or her deficiency; it being ordered that a credit shall be allowed to said executors and trustees, and to each of said purchasers, of the amounts of the shares of the purchasers in the capital of the estate such as are due to them respectively:

It is further ordered that interest at the rate of five per cent per annum shall be charged against the purchasers for all unpaid purchase money due by them respectively from the first day of January, 1890:

It is further ordered that the accounts of the executors and trustees as hereafter rendered shall be so stated as to conform to the modification of the accounts of the estate as altered and affected by this decree:

And whereas, it appears upon proof before the court that the executors and trustees, in making the assignments or transfers of the interest of the said estate to the said purchasers under the said decrees of June 14, 1890, and July 5, 1890, hereinbefore mentioned, assigned and transferred to John Markle two sixteenths thereof, to George B. Markle, Jr., two sixteenths thereof, to Alvan Markle two sixteenths thereof, and one half of one sixteenth interest to Ida Markle, and one half of one sixteenth to Clora Markle;

And whereas, it further appears to the court upon proof in this case that since the entry of the said decree, and the sales and assignments above mentioned, the interest purchased by and assigned to George B. Markle, Jr., has been assigned and transferred to Ida M. Hessenbruch, one half thereof, and one half thereof to Clora Markle, by way of pledge or collateral security for certain moneys advanced by them to him;

And whereas, in order to work out the various equities of the parties in reference to the said interest, it is deemed just and equitable that the form of this decree should be such as to properly protect and preserve the equities of the several purchasers;

It is therefore further ordered, adjudged, and decreed as follows: That if the said purchasers do not give security for the payment of the same, with interest as aforesaid, within the time aforesaid, then in lieu of said security the unpaid balance of the purchase money shall and it is hereby declared to be a charge upon the said six sevenths in trust mentioned in the first paragraph hereof, and that the said balance shall be payable out of the income, earnings and profits on the said six sevenths interest in the mining partnership as the same shall accrue to the said George B., Alvan and John Markle, such income, earnings and profits to be paid over and accounted for by the said respondents last named, from time to time, to the trustees under the will of George B. Markle, deceased, until the entire unpaid balance due by the said George B., Alvan and John Markle, with interest, shall have been fully paid and satisfied, with a right to the said trustees, or any of them, to apply to the court for such order or orders and such powers, from time to time, as may be necessary to carry out this decree.

The costs of the proceeding to be paid by the contesting respondents, John Markle and Ida M. Hessenbruch.

On May 29, 1896, the following opinion and decree by ASHMAN, J., was filed:

The proceedings instituted by the remainder-men resulted in a gain of $28,000 to the estate by the correction of an error in the appraisement, which, but for the proceedings, would probably never have been made. The mistake, however, was not set up in the petition, and in point of fact was unknown to both parties. But the prayers for specific relief, some ten in number, based upon alleged fraud by the trustee, and asking among other things for the setting aside of the sale and the vacation of the decree under which it had been effected, were all of them refused, and the charges of fraud were not sustained. The decree of July 5, 1890, except in the addition just noted to the amount of the purchase money stands as it was originally written. The order imposing the costs upon John Markle and Ida Hessenbruch was made under a misapprehension as to the agreement of parties, and should be rescinded. The costs instead...