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SIGEL APPEAL (02/13/53)

February 13, 1953

SIGEL APPEAL


Appeal, No. 305, Jan. T., 1952, from order and decree of Court of Common Pleas No. 1, of Philadelphia County, Dec. T., 1949, No. 7040, in Appeal of Emma Burk Sigel. Order and decree reversed.

COUNSEL

T. Henry Walnut, for appellant.

C. Brewster Rhoads, with him Robert L. Trescher, Montgomery, McCracken, Walker & Rhoads and Philip H. Schmehl, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Arnold, JJ.

Author: Stern

[ 372 Pa. Page 528]

OPINION BY MR. CHIEF JUSTICE HORACE STERN

On March 2, 1950, a petition was filed under the Act of May 28, 1907, P.L. 292, to have Emma Burk Sigel adjudged unable to take care of her property and in consequence thereof liable to dissipate or lose the same and to become the victim of designing persons. On March 22, 1950, the court granted this petition and appointed the Real Estate Trust Company of Philadelphia guardian of Mrs. Sigel's estate.

On April 10, 1952, the guardian filed its first account together with a petition for a decree of confirmation and the awarding to the guardian, for further administration, of the balance shown thereby less the allowances requested. Exceptions were filed to the account, signed by Mrs. Sigel and her attorney, T. Henry Walnut, Esq. The guardian filed a motion to strike these exceptions, and on May 28, 1952 this motion was granted and a decree entered by Hon. JOSEPH L. KUN confirming the account and authorizing payment of the allowances set forth in the petition for confirmation, but no hearing was had and no testimony taken. Mr. Walnut, as attorney for Mrs. Sigel, filed exceptions to this action of the court which came before the court en banc on the argument list and were dismissed on June 20, 1952. The present appeal followed on September 19, 1952.

The guardian moved to quash the appeal on the ground that the incompetent had no standing to file exceptions to the account and her counsel had no greater right than she had. In its brief it adds the additional reason that the order of the court granting its motion to strike the exceptions to the account was final and

[ 372 Pa. Page 529]

    definitive and the appeal was not filed within three months thereafter.

Considering first the objection made to the timeliness of the appeal, the authorities are clear to the effect that, while there are many things in connection with the administration of justice that an individual judge may do and perform, there are others where a majority of the court (if the court consist of more than one judge) is required for final action, and this is especially true where a power is conferred upon the court by statute: Carter's Estate, 254 Pa. 518, 527, 99 A. 58, 61, 62; Carney v. Penn Oil Co., 289 Pa. 588, 591, 137 A. 799, 800; Sterrett v. MacLean, 293 Pa. 557, 564, 565, 143 A. 189, 191.

Here the incompetent and her attorney having filed exceptions to the account, the auditing judge's action thereon was, in our opinion, properly reviewable by the court en banc; indeed the court en banc, without objection on the part of anyone, did hear argument on those exceptions. We conclude therefore that the present appeal, having been filed within three ...


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