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AMERICAN WATER WORKS & ELEC. CO. v. ALLEGHENY TRUS

October 28, 1940

AMERICAN WATER WORKS & ELECTRIC CO., Inc., et al.
v.
ALLEGHENY TRUST CO. et al.



The opinion of the court was delivered by: MCVICAR

This action is before us on the interpleader issue or issues previously ordered, to determine whether the Allegheny Trust Company, surviving executor of George W. Pusey, deceased, under his Pennsylvania will, or whether The Florida National Bank of Jacksonville and Roland T. White, executors under his Florida will, is entitled to the dividends and stocks involved in this proceeding. The court, after hearing, makes the following findings of fact and conclusions of law:

Findings of Fact.

 1. George W. Pusey, decedent, was born October 22, 1844. He died August 31, 1933.

 2. The decedent resided in Pittsburgh, Allegheny County, Pennsylvania, during the last fifty years of his life, excepting approximately, the last two years thereof, during which time he resided in the City of Orlando, County of Orange, Florida.

 3. June 12, 1929, the decedent made his last will and testament in Pittsburgh, Allegheny County, Pennsylvania, wherein he disposed of all of his property and named as executors, the Allegheny Trust Company and Charles W. Dahlinger, Esq. Dahlinger has since died.

 4. August 22, 1933, the decedent, in Florida, made another paper, purporting to be his last will and testament, wherein he disposed of all of his property and named The Florida National Bank of Jacksonville and Roland T. White, as executors.

 5. September 1, 1933, the executors under the Florida will offered said will for probate before the proper court in the County of Orange, Florida. On the smae day, Charles W. Dahlinger filed a caveat or petition, objecting to the probate of the Florida will. Judgment was taken against Dahlinger by default. September 14, 1933, the Women's Home Missionary Society of the Pittsburgh Conference of the Methodist Episcopal Church filed a petition before the court in Florida, contesting the probate of the Florida will, on the ground that the decedent was domiciled in Allegheny County, Pennsylvania, at the time of his death; that he lacked testamentary capacity at the time of the making of the Florida will August 22, 1933; and that said will was procdured by undue influence. The Pennsylvania executors were not parties to said contest. A hearing was held before the proper court in Florida and a decree was entered October 27, 1933 admitting the Florida will to probate. The court found that the decedent was domiciled in the County of Orange, Florida, at the time of his death; that he had testamentary capacity at the time he made the Florida will; and that it was not procured by undue influence.No appeal from this decision was taken.

 6. The Allegheny Trust Company, executor in the Pennsylvania will, paid the attorneys' fees, the court and other costs in the Florida will contest. The same attorneys were employed in the Florida will contest as were employed to assist in the Pennsylvania will case. There was an agreement or understanding between the Allegheny Trust Company and representatives of the Women's Home Missionary Society, aforesaid, that the society would indemnify the Allegheny Trust Company from personal loss for the fees and expenses paid. The Pennsylvania executors were not shown to have exercised any control in the Florida will contest.

 7. The executors under the Florida will, September 1, 1933, filed a caveat to the probate of any will other than the Florida will in the Register of Wills Office of Allegheny County, Pennsylvania. The Pennsylvania will was offered for probate September 14, 1933. The questions involved in the probate were certified to the Orphans' Court of Allegheny County. It held a hearing, at which appeared and participated the executors under the Pennsylvania will and the executors under the Florida will. The probate of the Pennsylvania will was ordered by the Orphans' Court September 29, 1933.

 8. January 24, 1934, petition for revocation of the probate in Pennsylvania was filed by Elizabeth O. Lavely et al., legatees under the Florida will. The executors under the Pennsylvania will and the executors under the Florida will were made parties. Answer was filed by the Florida executors. Exceptions were also taken to the probate of the Pennsylvania will. The issues of domicile of Pusey at the time of his death, testamentary capacity at the time of the making of the Florida will, undue influence in the procuring thereof and whether the Florida decree of probate was res judicata were raised. A hearing was held in which the Florida executors took part. February 19, 1935, the Orphans' Court of Allegheny County dismissed the petition of Elizabeth O. Lavely et al. and overruled the exceptions filed; said court held that the decedent was domiciled in Allegheny County, Pennsylvania, at the time of his death; that he did not have testamentary capacity at the time he made the Florida will; that said will was procured by undue influence and that the decision of the Florida court was not res judicata.

 9. An appeal was taken by the Florida executors and other proponents of the Florida will, from the decree of the Orphans' Court of Allegheny County, to the Supreme Court of Pennsylvania. That court, on January 31, 1936, affirmed the decree of the Orphans' Court of Allegheny County. Its decision is reported in Re Pusey's Estate, 321 Pa. 248, 184 A. 844. The Florida executors petitioned for a reargument before the Supreme Court of Pennsylvania, which was refused. They also petitioned the Supreme Court of the United States for a writ of certiorari to review the decision of the Supreme Court of Pennsylvania, which was refused, Lavely v. Young Women's Christian Ass'n, 299 U.S. 572, 57 S. Ct. 36, 81 L. Ed. 422.

 10. The approximate value of Pusey's estate at the time of the contest in the Orphans' Court of Allegheny County was $1,250,000. It included tracts of real estate in Allegheny County, Pennsylvania, and a residence at Orlando, Florida. His stocks and securities (which included the stocks involved in this case) were kept in a safe deposit box in the Allegheny Trust Company at Pittsburgh, where he had kept them for a long time. On August 22, 1933, he wrote a letter and executed a power of attorney for the purpose of transferring said stocks and securities from Pittsburgh, Pennsylvania, to Orlando, Florida; this transfer was refused by the Allegheny Trust Company. The Orphans' Court of Allegheny County found that said letter and power of attorney were procured by fraud.

 11. The decedent, at the time of his death, owned stock in the American Water Works & Electric Company, the West Penn Electric Company and the South Pittsburgh Water Company. Demand was made by the executors under the Pennsylvania will and by the executors under the Florida will for payment of the dividends accruing on said stocks and each set of executors demanded a transfer of said stocks to it. Whereupon, the aforesaid companies filed a petition for an interpleader in this court between the two sets of executors to determine who was entitled to receive the dividends accruing and accrued; also, the transfers of the stock. This court, November 2, 1939, directed that an issue or issues be framed to determine said questions, wherein the Allegheny Trust Company, surviving executor of the decedent under the Pennsylvania will, should be the plaintiff, and the ...


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