Appeals, Nos. 59 and 60, Jan. T., 1953, from orders and decrees of Orphans' Court of Delaware County, 1951, No. 91, in Estate of Joseph M. Ryan, Deceased. Orders and decrees reversed.
Philip Richman, with him Frank I. Ginsburg, for surviving spouse, appellant.
Raymond E. Larson, for guardian of minor, appellee.
Francis J. Gafford, Deputy Attorney General, with him Robert E. Woodside, Attorney General, and Elgin E. Weest, for Commonwealth of Pennsylvania, Department of Revenue, appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ARNOLD
The surviving spouse of Joseph M. Ryan, deceased, both as an individual and as administratrix of her husband's estate, appeals from an adjudication of the orphans' court: (a) entering a surcharge in the sum of $10,000 which she received from the sale of a liquor license issued to her, being a transfer from place to place and from person to person; (b) subjecting the estate to transfer inheritance taxes on the Commonwealth's appraisement of $5,000 on said liquor license; and (c) surcharging the sum of $1,568 for a beer cooling
system alleged to be owned by the surviving spouse individually.
I. The decedent was the owner of a liquor license. At his death in 1950 the liquor license was transferred to his surviving spouse under the provisions of § 408(c) of the Pennsylvania Liquor Control Act of 1937, P.L. 1762, as amended,*fn1 which provides, inter alia: "... In the case of the death of a licensee, the board may transfer the license to the surviving spouse or personal representative or to a person designated by him." In Pichler v. Snavely, 366 Pa. 568, 569, 79 A.2d 227, this Court, speaking through Justice BELL, said: "The law is well settled that a liquor license is not a property right, but only a purely personal privilege for a specific limited time, which is subject to termination by the Liquor Control Board for cause and which, in any event, terminates with the licensee's life. A liquor license or the privilege to sell liquors for a specified time, although often very valuable, is not assignable, (as that term is generally understood) nor does it go to the personal representatives or become an asset of the holder's estate in case of death [citing cases]." (Italics supplied). The administratrix made an application to the Liquor Control Board for the transfer of such license to her as an individual. We deem it of no importance that this application was signed by her as administratrix of her husband's estate, since the Act expressly provides that the surviving spouse may have the license transferred to her, and this right would not have been abrogated had another individual been appointed administrator.
Since upon the death of the licensee the license was, in fact, terminated, and since under the terms of the Pennsylvania Liquor Control Act the Board had power
to grant a new license to the surviving spouse -- as it did -- it follows that said new license was not an asset of the estate. It did not become an asset of the estate merely because the new licensee mingled certain assets of the decedent's estate with her own property in the conduct of the licensed place. To the extent that the administratrix used the funds of the estate for her own benefit in connection with the operation of the license, she may be surcharged.
When she later sold and transferred her own individual liquor license to Jones & Morrissey -- a transfer not merely from person to person but from place to place -- the situation was not altered, and the sum which she received from the transfer was not and cannot become an asset of the estate.
The lower court relied on the case of Aschenbach v. Carey, 224 Pa. 303, 73 A. 435, but that case is clearly distinguishable. There a decedent held a liquor license. The brother of the decedent became administrator of the estate and obtained a transfer of the license to him. In the appraisement the administrator charged himself with the license as well as the stock and fixtures of the place of business, and paid for the transfer and reissuances of the license out of estate funds. He deposited all sums received from the place of business in his account as administrator. Under an order of the orphans' court the administrator was authorized to sell the license, which he did. As administrator he also sold the stock and fixtures to the same person who purchased the license, who had acquired the lease of the premises. By attachment-execution a creditor of the brother who was the ...