Appeal, No. 195, Jan. T., 1953, from order of Superior Court, Oct. T., 1952, No. 125, affirming decree of Orphans' Court of Lancaster County, June T., 1917, No. 46, in Estate of Max A. Schulz. Decree reversed; reargument refused July 22, 1953.
Charles E. Workman, with him Daniel H. Shertzer, for appellant.
Robert Ruppin, with him Joseph R. Byars, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
The appeal is from an order of the Superior Court affirming a decree of the Orphans' Court of Lancaster County refusing to make an order on the register of wills authorizing the grant of letters of administration de bonis non cum testamento annexo after twenty-one years from the death of testator. See sec. 21 of the Act of March 15, 1832, P.L. 135 (reenacted sec. 302 Fiduciaries Act of 1949, P.L. 512, 20 PS 320.302).
Max Schulz, the testator, died May 30, 1917. He was possessed of a twenty-six acre farm and personal property estimated at $3,000. He was a widower survived by seven adult children. By his will the residuary estate, consisting of the above real and personal property, was devised and bequeathed to his executor with direction to convert the real estate into personalty within two years from his decease and to divide the fund into seven equal shares. He bequeathed an equal one seventh share to each of six named children. The remaining one seventh share (the subject of the present litigation) he directed to be retained by his executor in trust to "invest so much thereof as he may deem necessary" in the purchase of a home for the use of his son Frank and the son's wife Lena, and to invest the balance and to pay the net income to the son and wife for their successive lives. Upon the decease of the life tenants the testator further directed that the house should be sold, and the entire corpus of the trust equally divided among the children of such life tenants. Testator's son Edward was named as executor.
The record discloses that the executor filed neither an inventory nor an account and no home was ever purchased. Lena, the son's wife, predeceased her husband.
On March 24, 1920, six of testator's children including the son Frank, the life tenant of a one-seventh share, deeded their respective interests in the real estate, and released their interests in the personal estate to Edward Schulz who was the executor trustee of testator's estate. The deed and release were recorded. The pivotal fact is that none of the children of Frank and Lena -- five of the seven of whom were then minors -- were joined, either in person or by guardian in such transfer and release.
Despite the failure of such joinder of Frank's children, the deed Erroneously recites: "... all of the parties hereto are all of the heirs and legal representatives of the said Maximillian Schulz, deceased, and are all of the parties who now have or hereafter might or could have any interest in the said real estate and by arrangement among all of the parties hereto it has been agreed to execute this conveyance so that the said Edwin J. Schulz the grantee herein shall have an absolute fee simple title in the premises free and discharged of all claims whatsoever which any of the parties hereto might or could have in the said real estate, or in any personal property belonging to the said decedent."
The consideration in the deed is named as One Dollar. The revenue stamps affixed, however, were in the amount of $12.00, indicating a consideration of $12,000. In respondent's answer under new matter, it is stated that: "... all the children of Maximillian Schulz, including his son Frank, who was entitled to the income for life of one-seventh (1/7) of the proceeds of the land, ...