Edward J. McGrath, Herbert Mayers, Philadelphia, for appellants.
William P. Cairo, Philadelphia, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Arnold, JJ.
[ 167 Pa. Super. Page 11]
Upon the petition of her daughter Amelia, Bertha M. Owens was adjudged 'not able, owing to weakness of mind to take care of her property', and in conformity with the Act of May 28, 1907, P. L. 292, as amended, 50 P. S. § 941 et seq., a guardian was appointed for her. She and her son James appealed.
Mrs. Owens is 81 years old, afflicted since 1940 with rheumatism and arthritis, and for two years has been confined to a bed in a nursing home. She requires help to get in or out of bed, and for dressing and eating, having no strength in her crippled hands, and experiences pain when she moves her legs. She was not brought into court, and the hearing judge lacked opportunity to
[ 167 Pa. Super. Page 12]
observe personally her appearance and her mental capacity, always considered a potent factor on appellate review. Graham v. Miller, 57 Pa. Super. 479; In re Arthur's Case, 136 Pa. Super. 261, 7 A.2d 55; In re Wingert Case, 163 Pa. Super. 616, 63 A.2d 441.
The sister is fighting her brother for control of their mother's property. 'The record gives the impression that the motive for the petition was not so much to conserve the respondent's property as to channel its inheritance to the next of kin.' Denner v. Beyer, 352 Pa. 386, 388, 42 A.2d 747, 748. Their father died September 8, 1949, and by his will left his entire estate, valued at $65,000, to his widow, and appointed her and the son executors. Mrs. Owens renounced, the son qualified as executor, and at her request has managed the affairs of the estate. Ill feeling between brother and sister probably originated in 1933, when their father retired from the retail hardware business, and turned it over to the son, who had assisted him in it. The daughter instituted this proceeding on September 22, 1949, and the hearing was held on October 7, 1949. Between those days, on October 1, 1949, to be precise, the mother made a will, giving the daughter $2000, small legacies to her grandchildren and a niece, the remainder to her son, and appointed him executor. The Act of 1907, supra, and its antecedent, have been declared dangerous statutes, which are to be administered with the utmost caution and conservatism. In re Hoffman's Estate, 209 Pa. 357, 58 A. 665; In re Ryman's Case, 139 Pa. Super. 212, 11 A.2d 677. A decree operates prospectively only, Ryman's Case, supra, but a will made during the pendency of the proceeding may be jeopardized by a decree. 'Owing, however, to the shortness of the interval between the execution of the will and the decree of the common pleas, the latter is proper evidence for consideration in a contest over the former.' In re Mulholland's Estate, 217 Pa. 65, 68, 66 A. 150. That possible, indeed probable, consequence emphasizes the duty
[ 167 Pa. Super. Page 13]
of a court to proceed cautiously in the administration of this inherently dangerous statute.*fn1
The hearing judge, animated by commendable motives, appointed a guardian to allay the controversy between brother and sister. This appeal indicates the degree of success attained by the decree. He held that the decree was an exercise of judicial discretion vested in him, reversible only for its abuse. Expressions to that effect occur in cases where courts have appointed temporary receivers or selected particular guardians from among available or recommended persons. In re Parke's Case, 41 Pa. Super. 531; In re Voshake's Estate, 125 Pa. Super. 98, 189 A. 753; Cf. In re Misselwitz, 177 Pa. 359, 35 A. 722. But the Supreme Court has ruled: 'Applications of this nature are not to be encouraged, and should not be granted except in a clear case.' In re Bryden's Estate, 211 Pa. 633, 61 A. 250, 251. This Court has held that a decree will not be entered where the evidence 'falls short of exhibiting the clearness and strength which must be present when the extraordinary power is invoked with which the court is ...