In re White's Estate

• Decision Date: 25 May 1936
• Docket Number: 437
• Parties: White's Estate
• Court: Pennsylvania Supreme Court

185 A. 589

322 Pa. 85

White's Estate

No. 437

Supreme Court of Pennsylvania

May 25, 1936

Argued January 14, 1936

Appeal, No. 437, Jan. T., 1935, by accountant, from decree of O.C. Phila. Co., 1933, No. 1164, in Estate of Lillian M White, deceased. Order affirmed.

Audit of account of administrator c.t.a. Before SINKLER, J.

The facts are stated in the opinion of the Supreme Court, and also in the opinion of the lower court, reported in 22 D. &amp C. 510.

Adjudication filed allowing claims of creditor, and also directing surcharge against accountant. Exceptions to adjudication by accountant dismissed, before LAMORELLE, P.J., VAN DUSEN, STEARNE, SINKLER and KLEIN, JJ., opinion by STEARNE, J. Petition by accountant for review of the adjudication dismissed. Accountant appealed.

Error assigned, among others, was order dismissing petition for review.

The order of the court below is affirmed at appellant's cost.

Robert P. Shick, for appellant.

J. Willison Smith, Jr., with him Edward A. Kelly, for appellee.

Before KEPHART, C.J., SCHAFFER, MAXEY, DREW, LINN and BARNES, JJ.

OPINION

MR. JUSTICE BARNES:

Lillian M. White, a widow, died March 22, 1932, leaving no issue surviving. By her will dated June 12, 1928, she gave the residue of her estate, after a number of pecuniary bequests, to the Protestant Episcopal Church of the Holy Apostles, Philadelphia. A later will of decedent, dated February 24, 1932, was produced, which named as sole legatees of her estate Abraham and Rupert Bamash. Both wills were offered for probate, whereupon proceedings to contest the validity of the later will were instituted before the Register of Wills of Philadelphia County. Following hearings before the register an agreement of settlement was entered into by all the parties in interest. By the terms of this compromise the first will of June 12, 1928, was probated and an administrator c.t.a. appointed who thereupon paid over to the Bamash claimants $2,400 in cash and mortgages belonging to decedent's estate.

In due course the administrator presented his account to the orphans' court for audit. He claimed credit as an administration expense for the payment made in settlement of the will contest. The auditing judge disallowed this credit and surcharged the administrator with the $2,400 so paid. At the audit the Wilton Building and Loan Association presented two claims for which the administrator had made no provision in his account. These claims were based upon judgments entered on mortgage bonds executed by the decedent as obligor during her lifetime. Both claims were allowed by the auditing judge. Exceptions by the administrator to this adjudication were dismissed by the court in banc and a final decree entered.

Two months later the administrator presented to the court below a petition to review the adjudication, praying that the decree of confirmation be vacated and set aside with respect to one of the claims of the Wilton Building and Loan Association and the surcharge against himself. Upon this petition a rule to show cause was granted and an answer filed by the association. After argument in the court below, the petition for review was dismissed. The administrator then took this appeal.

The claims presented by the Wilton Building and Loan Association were upon two bonds secured by mortgages upon which decedent was sole obligor. The decedent, who was then known as Lillian M. Wagner, purchased in 1922 the premises 135 N. Millick Street, Philadelphia, and at that time executed and delivered a first mortgage upon the property for $3,000 to Cora S. Vanderveer, and a second mortgage for $1,500 to the Wilton Building and Loan Association. In April, 1930, decedent sold this property subject to the two mortgages. Thereafter, during her lifetime, judgment was entered against her upon the bond accompanying the first mortgage in favor of Cora S. Vanderveer, for $3,267. Under this judgment the premises were sold at sheriff's sale on August 4, 1930, for $50 to James E. Coughlin, to whom the sheriff's deed was made, and the property was then conveyed by Coughlin to John H. Kramer. Kramer executed and delivered a bond and mortgage upon the property to Cora S. Vanderveer in the principal sum of $2,200, and subject to this mortgage, a conveyance of the property was made by Kramer to the Wilton Building and Loan Association, in whose name it now stands. In addition the association acquired in June, 1932, by assignment from Cora S. Vanderveer the judgment originally entered against decedent upon the bond secured by the first mortgage. It now seeks to recover the amount of this judgment from the estate. The association in May, 1933, recovered a judgment for $1,429.51 against the administrator upon the second mortgage bond of decedent. The second claim of the association is founded upon this judgment and its validity is not in dispute.

As a result of these transactions, the association is now the owner of the Millick Street property, and also is claimant against the estate upon both of the mortgage bonds which decedent executed at the time she purchased the property.

It is the contention of the administrator, however, that upon payment of the claims of the association the estate is entitled to a reconveyance of the mortgaged property. He asks that the premises be reconveyed clear of encumbrance, or otherwise that a deduction be allowed upon the claims of the association to the extent of the present $2,200...