Appeals, Nos. 203 and 204, March T., 1950, from decree of Orphans' Court of Washington County, Aug. T., 1947, No. 77, in Estate of Samuel Adam Harbison, etc. Deceased. Decree affirmed.
Adolph L. Zeman, with him Robert L. Zeman, Sidney Hoffman and Zeman & Zeman, for residuary legatees, appellants.
Lloyd O. Hart, with his George B. Berger and J. M. McCandless, for creditor, appellee.
Before Drew, C.j., Stern, Stearne, Jones, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE LADNER
This is appeal from the decree of the Orphans' Court of Washington County granting a review of an adjudication of the estate of Samuel Adam Harbison and allowing a claim not presented at the audit. The salient facts are as follows:
Samuel Adam Harbison died September 5, 1946, leaving a will by which he named Georgie Stewart and Ora Cannon Miller, his executrices and sole residuary legatees. Mrs. Miller had been decedent's housekeeper and is the mother of Mrs. Stewart. They filed their account which showed a balance for distribution of $122,446.28. The account was called for audit before the late Judge WRENSHALL on September 9, 1947, at which time Mr. Knox, then attorney for the estate, requested that the sum of $30,000 be reserved in distribution to meet the unpaid federal estate tax and possible further income tax liability. Judge WRENSHALL become ill soon after the audit, unable to attend to his duties, and died
on November 10, 1947. After his death, Judge BOYLE, of the Allegheny County Orphans' Court, was authorized by this Court to sit specially in the Orphans' Court of Washington County until the vacancy was filled. On November 27, 1947, Judge BOYLE filed a decree of distribution in this estate and after making a reservation of $50,000.00 for future accounting, directed distribution of the balance of the estate. No exceptions were filed nor was any appeal taken therefrom.
On July 22, 1948, a petition was presented to the court below asking for a citation on accountants to show cause why they should not account for the $50,000.00 reawarded to them in the decree of distribution for future accounting. The petition was filed by the Brookline Savings and Trust Company which averred in its petition that it was a creditor of decedent by reason of being the holder of a judgment note of $7,000 dated May 1, 1946, signed by the P.&K. Woodcrafting Company, Louis C. Polk and William H. Kotar, and the decedent. That prior to date of decree of distribution notice of the claim was given by counsel for the bank to Mr. Knox as counsel for the estate, but neither counsel called the attention of the Orphans' Court or the judge presiding in that court, to the fact that the payment of this claim was being discussed and consequently decree of distribution was made as above indicated. To this petition an answer was filed denying the right of the bank to be heard or to have a further account filed because it had not presented its claim at the audit of the first account and for the reason that the fund reserved was for the special purpose of payment of taxes only and subject to the payment of such claims, had been distributed. The creditor thereupon filed a second petition praying for a citation to show cause why the decree of distribution should not be opened and reviewed so that the bank might be heard
on the merits of its claim. To this petition the accountants filed an answer denying that the bank was a party in interest because it had failed to give written notice of its claim within six months period required by statute, denied the genuineness of the note upon which the claim was based, alleged all funds had been distributed, and denied the court's authority either to require the filing of an account ...