Daniel H. Shertzer, Charles E. Workman, Lancaster, for appellant.
Joseph R. Byars, Robert Ruppin, Lancaster, for appellee.
Before Rhodes, P.j., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 172 Pa. Super. Page 594]
Max Schulz died testate May 30, 1917. He directed that his executor sell and dispose of his real estate within two years after his death. He divided the proceeds
[ 172 Pa. Super. Page 595]
into seven equal shares and gave one share to each of his six named children, including his son Edward (also known as Edwin J.) Schulz, whom he appointed executor. He directed that the seventh share be retained by the executor and so much thereof as the executor deemed necessary be used for the purchase of a dwelling house for his son Frank and the son's wife Lena, the balance, if any, to be invested and the income therefrom paid to Frank for life. At the death of the survivor of Frank and Lena the testator directed that the real estate so purchased for them be sold and the proceeds divided among their children in equal shares. Lena predeceased the testator.
The executor did not sell the land within two years as directed, but on March 24, 1920, six of the children of Max Schulz, and the spouses of those then married, joined in a deed to convey to their brother Edwin, executor of the estate, the land of which their father died seized. Also under date of March 24, 1920, the six children of testator, who executed the deed, signed and gave a release to the executor. The release set forth that each had received payment in full satisfaction of his or their respective share in the personal estate of decedent and approved the 'separate account or statement submitted to us' showing the executor's administration of the estate. As stated in the opinion of the learned president judge of the court below: 'The execution of the deed and the release brought amity to the family for only a short while. On February 24, 1921, John H. Schulz petitioned for a citation directed to Edwin, the executor, to show cause why he should not file an account of his administration. The petition alleged the failure of Edwin to pay John his share as shown by the account exhibited at the time the release was executed and that the release therefore was obtained under false and fraudulent representation. On
[ 172 Pa. Super. Page 596]
May 15, 1922, in an opinion filed by the late President Judge Eugene G. Smith, the rule granted to show cause why the citation should not issue was discharged. It was held that 'The estate has been settled and it was done agreeably to all parties." Nothing further was done until May 13, 1938, when there was filed what was designated as 'the first triennial account of Edwin J. Schulz, testamentary trustee for Frank Schulz.' The account was neither advertised nor audited.
On July 27, 1951, an amended petition was filed for the appointment of an administrator d.b.n.c.t.a. of the estate of Max Schulz and the court granted a rule on all parties was interest to show cause 'why the Court should not order and direct the Register of Wills *** to grant new letters in this estate in such form as the case may require to the person or persons entitled thereto.' An answer was filed and preliminary ...