Appeal, No. 99, Jan. T., 1955, from judgment of Court of Common Pleas of Delaware County, Nov. T., 1953, in Equity, No. 951, in case of Robert W. Beatty and Margaret Harrison, Executors, Estate of William
John G. Bartol, Jr., James A. McGoldrick, Butler.
James A. Moore, with him A. Sidney Johnson, Jr.,
R. Winfield Baile, with him George W. Thompson, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE CHIDSEY
This is a companion case to Roberts Estate (appeals of Robert W. Beatty and Margaret Harrison, executors, and of Ella N. Greenfield, residuary legate), decision in which was filed co-temporaneously herewith (see 380 Pa. 600, 112 A.2d 394). The history of the litigation preceding the present appeal appears at length therein.
Briefly stated, William J. Roberts, the decedent, died on May 20, 1949. After his death two wills were discovered, one dated March 18, 1948 and the other May 11, 1948. In the earlier (March) will testator left his coal and building supply business to Ella N. Greenfield as part of his residuary estate. In the later (May) will he specifically bequeathed the business to William Hottenstein, again leaving the residue to Mrs. Greenfield. Following probate of the March will, Hottenstein appealed, alleging the May will to be decedent's last will. To avoid a will contest Hottenstein, Mrs. Greenfield and the executors under the March will entered into an agreement of settlement. Thereafter, alleging breach of this agreement by the executors and Mrs. Greenfield, Hottenstein proceeded with his appeal from the probate of the March will and on February 13, 1953 this Court sustained the decree of the court below upholding the validity of the May will (373 Pa. 7), which was thereupon probated. Following the filing of a first and final account on October 20, 1953 by the executors under the March will who by order of the court below were directed to complete the administration and distribution of the estate under the May will, the court below awarded to Hottenstein all monies paid by him to the executors under
the terms of the abortive settlement agreement, and upon appeal we sustained this award in our decision above referred to, filed this day.
On December 28, 1953 Robert W. Beatty and Margaret Harrison as executors filed a complaint in equity in the Court of Common Pleas of Delaware County against Hottenstein seeking to recover profits allegedly made by him in conducting the business subsequent to the termination of the settlement agreement in 1950 and praying for an accounting by him. Defendant filed preliminary objections thereto. With leave of court an amended complaint was filed to which defendant again filed preliminary objections in the nature of a demurrer. The court entered an order sustaining the preliminary objections and entered judgment for the defendant. The present appeal is by the executors from this judgment.
In defendant's preliminary objections it was asserted that the complaint failed to state a cause of action in that by its averments it disclosed the validity of the May will as sustained by this Court, under which the defendant Hottenstein was legally entitled to the decedent's business and to conduct it from the date of decedent's death; that during the period for which an accounting was sought he alone had possession of and conducted the business, the plaintiffs in no manner having actively engaged in its management and operation; that there was no averment that the alleged profits were required for ...