In re Peden's Estate

• Decision Date: 13 November 1962
• Citation: 185 A.2d 794,409 Pa. 194
• Parties: In re ESTATE of John PEDEN, Deceased. Appeal of Daniel YOUNG and William Young, Administrators and Sole Heirs at Law of the Estate of Bella Peden, Deceased. Appeal of PITTSBURGH NATIONAL BANK, Trustee under the Will of John Peden, Deceased.
• Court: Pennsylvania Supreme Court

185 A.2d 794

409 Pa. 194

In re ESTATE of John PEDEN, Deceased. Appeal of Daniel YOUNG and William Young, Administrators and Sole Heirs at Law of the Estate of Bella Peden, Deceased. Appeal of PITTSBURGH NATIONAL BANK, Trustee under the Will of John Peden, Deceased.

Supreme Court of Pennsylvania.

November 13, 1962.

Rehearing Denied Dec. 5, 1962.

Morris A. Mendlowitz, Pittsburgh, for appellants Young and Bella Peden estate.

Robert W. McWhinney, Goehring & McWhinney, Pittsburgh, for Pittsburgh Nat. Bank.

John J. McLean, Jr., Pittsburgh, for Elizabeth Peden.

Charles W. Herald, Sp. Asst. Atty. Gen., Pittsburgh.

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

BELL, Chief Justice.

John Peden died March 6, 1961; letters testamentary on his will were issued to Pittsburgh National Bank.

Peden's will, which he executed on October 31, 1957, provided, inter alia, as follows:

'Second I specifically devise to my Trustee hereinafter named the following particular pieces or parcels of real estate which I hold as tenant by the entireties with my wife, BELLA PEDEN with the intent and purpose of putting my said wife, BELLA PEDEN, or her guardian as the case may be, to her election ^[1] of accepting her share under this my Last Will and Testament, or declining the benefits to her under this my Last Will and Testament and accepting only her intestate share, it being my belief that her interests will be better served by receiving all of my estate as the corpus of a Trust for her benefit than it would be to receive a fee in a portion of my estate, under circumstances existing as of the date of this Will:

'(A) My residence at 4031 Davis Avenue erected on Lots 4019 and 4020 in the Homestead Park Plan, Borough of Munhall, Allegheny County, Pennsylvania.

'(B) The premises at 109 West Virginia Avenue, Munhall, Pennsylvania, erected on Lots 1945, 1946 and 1947 in the Plan, Borough, County and State aforesaid.'

Testator then gave in the fourth paragraph of his will his residuary estate in trust 'to distribute all the income and so much of the principal as may in its discretion be needful for the proper and comfortable maintenance, care and welfare of my beloved wife, Bella Peden * * * for her natural life, assuring, insofar as is possible, adequate medical and other care without regard to preservation of principal * * *' with a gift at his wife's death of the income and the principal to his nephew, John Sterling Peden who, the testator stated, had 'been reared by my beloved wife, Bella Peden, and me as though he were our son.'

The testator's wife, Bella Peden, had become mentally incompetent in April, 1956, but was not so adjudicated until May 28, 1961, at which time Peoples Union Bank and Trust Company was appointed guardian of her estate. On June 21, 1961, without authority of the Orphans' Court, the guardian elected, by a letter to the executor, to take against the will. Bella Peden died July 16, 1961. After her death, the guardian of her estate filed the election to take against Peden's will in the office of the Register of Wills and recorded it in the office of the Recorder of Deeds on September 21, 1961.

On August 28, 1961, John Peden's executor filed a supplemental inventory which included the two aforesaid entireties-properties, and thereafter filed an Account.

Peden's executor and trustee had previously obtained a citation directed to the guardian of the estate of Bella Peden and the administrators and heirs of Bella Peden to show cause why they should not convey to it the legal title to the two aforesaid pieces of real estate, and also render an accounting of the rents and profits. The issue raised by the citation was heard at the audit of the account of Peden's executor.

The Orphans' Court entered a Decree which confirmed absolutely the executor's Account and ordered distribution in accordance with the Schedule of Distribution which awarded (1) under Schedule A 'To Pittsburgh National Bank, Trustee of the estate of John Peden, deceased, for the purposes set forth in the will * * * a balance of $32,353.73,' and (2) under Schedule B 'to Daniel Young and William Young, administrators and sole heirs of the estate of Bella Peden, deceased, 'the two aforesaid (entireties) premises which were appraised at $23,000. Both John Peden's trustee and Bella Peden's administrators and heirs appealed to this Court.

The Decree must be affirmed.

Bella Peden's heirs and administrators contend that the election to take against John Peden's will which was filed by the guardian of her estate was valid. There is no merit in this contention. Since the election was filed by Bella's guardian in Bella's lifetime without the authority of the Court, it was a nullity; after Bella Peden's death the Court could not authorize or direct the guardian of her estate to file an election to take against or under his will: Harris Estate, 351 Pa. 368, 41 A.2d 715; Arnold's Estate, 249 Pa. 348, 94 A. 1076; Gerlach's Estate, 127 Pa.Super. 293, 193 A. 467; Sec. 12(b) of the Wills Act of 1947. ^[2]

In Harris's Estate, 351 Pa., supra, the Court said (pp. 382, 383, 384, 41 A.2d p. 722):

'It is firmly established that the committee of a lunatic or the guardian of a weakminded person cannot elect on behalf of the ward to take against the will of the latter's spouse unless empowered to do so by the court: Kennedy v. Johnston, 65 Pa. 451; In re Arnold's Estate, 249 Pa. 348, 363, 94 A. 1076, 1081; In re Brooke's Estate, 279 Pa. 341, 344, 123 A. 786, 787; In re Stockton's Estate, 311 Pa. 189, 166 A. 648; German's Case, 318 Pa. 200, 178 A. 38; In re Gerlach's Estate, 127 Pa.Super. 293, 300, 301, 193 A. 467, 470, 471. It is exclusively for the court, which is the real guardian of the incompetent, to determine whether such an election should be made, and well defined principles have been laid down as guides for the exercise of its discretionary power. * * *

'* * * while the court should base its decision on the consideration of all the circumstances (Kennedy v. Johnston, 65 Pa. 451, 455; In re Stockton's Estate, 311 Pa. 189, 191, 166 A. 648; German's Case, 318 Pa. 200, 203, 178 A. 38, 40), the welfare of the widow is the main object of such consideration, and therefore the interests of her creditors or heirs who might either benefit or suffer by the choice to be made are almost wholly immaterial in the determination of the question. If the needs of the incompetent are satisfactorily provided for, ^[3] the court should not authorize an election which would result in diverting the property of the deceased husband from his own heirs or legatees to those of his widow: In re Bringhurst (Fidelity Trust Co.'s Appeal), 250 Pa. 9, 14, 95 A. 320, 321; In re Brooke's Estate, 279 Pa. 341, 343, 123 A. 786, 787; In re Stockton's Estate, 311 Pa. 189, 166 A. 648; see also In re Miller's Estate, 9 Pa. D. & C. 657, 43 Montg. 21.'

Section 12(b) of the Wills Act of 1947, supra, provides: 'The right of election shall be personal to the surviving spouse and shall not be exercised after [her] death.'

In Arnold's Estate, 249 Pa., supra, the Court said (page 363, 94 A. page 1081):

'* * * The guardian could not make an election without the direction of the court empowering him to do so. Kennedy v. Johnston, 65 Pa. 451. We have adverted to the fact that the guardian had in pursuance of instructions by the court of common pleas declined to take under the will, but subsequently the court in effect revoked that order and directed the guardian to await the final determination of the question and litigation as to whether the charitable legacies were void or not before the election was made. The appellee contends that no election was made by the guardian during the lifetime of his ward, and therefore no election can now be made by him to take against the will. This is correct. Buckland's Est., 239 Pa. 608, 613, 86 A. 1098; Jackson's App., 126 Pa. 105, 17 A. 535. At the time this appeal was taken, Mr. Arnold was still alive, but it appears by the appellee's brief that he died January 28, 1915. The presumption, after his death, is that Mr. Arnold took under the will, and he must be regarded as having done so. Crozier's App., 90 Pa. 384; Jackson's App., 126 Pa. 105, 108, 17 A. 535; Geist's Est., 193 Pa. 398, 400, 44 A. 437. It follows that the interest given Mr. Arnold by his wife's will will merge with the absolute interest given him under the intestate laws in that part of the estate as to which there is an intestacy. Kane's Est., 185 Pa. 544, 40 A. 90; Conley's Est., 197 Pa. 291, 47 A. 238; Moore v. Deyo, 212 Pa. 102, 61 A. 884.'

In Gerlach's Estate, 127 Pa.Super., supra, the Court said (pages 301-302, 193 A. page 470):

'* * * The functions and powers of a guardian or committee cease with the life of the incompetent; there remain only the duty and liability to account. Dean's Appeal, 90 Pa. 106; 32 Corpus Juris, p. 693, § 383; Young's Adoption, 259 Pa. 573, 103 A. 344; Stobert v. Smith, 184 Pa. 34, 38 A. 1019.

'The guardian of the estate of Andrew H. Gerlach had no statutory power to elect to take against the will of its ward's spouse. It could act only as directed and empowered by the court. Kennedy v. Johnston, supra; Arnold's Estate, 249 Pa. 348, 363, 94 A. 1076. No such action was taken during the lifetime of the ward. If no such election was made during the lifetime of the ward, no electin to take against the will could be made thereafter. Upon the death of the ward the guardian's authority to proceed ceased. Young's Adoption, 259 Pa. 573, 576, 103 A. 344.

'And likewise upon the death of the ward the power of the court to elect terminated. Only so long as the ward lived was the court as guardian vested with the power of choice (German's Case,...