Maurice's Estate, In re

• Decision Date: 15 January 1969
• Parties: , 55 A.L.R.3d 780 In re ESTATE of Margaret Stewart MAURICE. Appeal of Dorothy D. WILKINSON; Marian Wilkinson; Charles F. Maurice;Priscilla Dall Krstolovic; Thomas F. Maurice; Charlotte M. Hammond; Stewart M.Dall; C. Whitney Dall, Jr.; Ellen P. Maurice; Charles Stewart, Maurice Estate,by Mrs. DymockMaurice; and Albert T. Maurice Estate, by Hyman L. Battle, Jr., Executor.
• Court: Pennsylvania Supreme Court

Page 334

249 A.2d 334

433 Pa. 103, 55 A.L.R.3d 780

In re ESTATE of Margaret Stewart MAURICE.

Appeal of Dorothy D. WILKINSON; Marian Wilkinson; Charles F.

Maurice;Priscilla Dall Krstolovic; Thomas F. Maurice;

Charlotte M. Hammond; Stewart M.Dall; C. Whitney Dall, Jr.;

Ellen P. Maurice; Charles Stewart, Maurice Estate,by Mrs.

DymockMaurice; and Albert T. Maurice Estate, by Hyman L.

Battle, Jr., Executor.

Supreme Court of Pennsylvania.

Jan. 15, 1969.

Donald Reuter, Duvall & Reuter, Towanda, for appellant.

Robert J. Murphy, Bennett, Davis & Murphy, Towanda, for appellee, Citizens Nat. Bank and Trust Co. of Towanda.

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

OPINION

JONES, Justice.

Margaret Stewart Maurice (decedent), a Bradford County resident, died testate on December 25, 1958. Citizens National Bank and Trust Company, Towanda, was named as Executor under decedent's last will and testament. Decedent's estate was valued at approximately $900,000.00.

On March 22, 1960, the Executor filed the Federal Estate Tax return and paid the tax which it estimated. Approximately two years and four months later--July 20, 1962--the United States Government assessed a tax deficiency against the estate and this deficiency was paid on September 5, 1962.

On May 21, 1964, a conference was held between counsel for the Executor and counsel for the present appellants, the testamentary residuary legatees, at which the latter outlined in detail for counsel for Executor an error made by the Executor in the Federal Estate Tax return. This error, it was claimed, was caused by the failure of the Executor to claim credit in said Estate Tax return for a tax previously paid on prior transfers from the Marion Maurice ¹ Estate, Marion Maurice having predeceased decedent by approximately three and one-half years.

Thereafter, on July 9, 1964, the Executor claimed a Federal Estate Tax refund. The Executor was successful in recovering $6,934.14 of an overpayment of tax because the statute of limitations had not barred a recovery against the deficiency assessment which it had paid. However, the bulk of the Executor's claim for a refund was denied because the statute of limitations had run.

When the Executor filed its Second and Final Account, later amended, the appellants filed exceptions thereto, only one of which was pressed before the court below and only one of which is now before us. The appellants excepted to the account claiming that, by reason of the Executor's failure to claim an allowance of credit for tax previously paid on the prior transfers in the Marion Maurice Estate, an overpayment of Federal Estate Tax in the amount of $17,215.28 was made. For this overpayment and resultant loss to the estate the appellants claimed the Executor should be surcharged.

When the matter came before the Orphans' Court of Bradford County, the parties entered into a stipulation, the salient portions of which are as follows: (1) that a loss to decedent's estate in the amount of $17,215.28, with interest from March 22, 1960, resulted from the Executor's overpayment of the federal estate tax; (2) that this error was called to the attention of counsel for the Executor on May 21, 1964; (3) that the Citizens National Bank and Trust Company and its counsel had acted as Executor and counsel respectively for both the estates of Marion Maurice and the present decedent; (4) that, during their lifetimes, Marion and Margaret Maurice had engaged the services of LaBarr and LaBarr, accountants and tax consultants, and that LaBarr and LaBarr acted not only for them during their lifetimes but were also retained by the Executor to act in connection with their estates; that, in connection with the instant decedent's estate, LaBarr and LaBarr prepared and filed the Federal Estate Tax return and were in turn paid $17,572.69 out of the estate funds for their services in preparing and filing such return; (5) that when the Federal Estate Tax return was audited LaBarr and LaBarr were not consulted by the Executor and they were not present at the original audit or at a later audit when the tax deficiency was assessed.

Appellants' claim for a surcharge against the Executor was presented to the court below on the basis of this stipulation. The court dismissed appellants' objection to the Executor's account and confirmed the account. The rationale of the court below was that it was the burden of appellants, seeking to surcharge the Executor for the overpayment of tax, to bear the burden of proving that the Executor had failed to exercise common prudence, common skill and common caution in the exercise of its fiduciary duty, and appellants had failed to sustain their claim to a surcharge. From the decree confirming the account that instant appeal was taken.

We are of the opinion that, under the circumstances, the court below was in error.

It is settled beyond question that it was the duty of the Executor to pay the Federal Estate Tax, and this duty, if not performed, would result in individual liability on the part of the Executor. See: Internal Revenue Code (Act of August 16, 1954, c. 736, 68A. Stat. 374, 26 U.S.C.A. § 2002). Cf.: Mellon's Estate, 347 Pa. 520,...