Appeal, No. 314, Jan. T., 1954, from order of Orphans' Court of Northumberland County, May T., 1951, No. 63, in re estate of Samuel S. Randall, deceased. Order modified.
Paul Yermish, with him Sanford S. Marateck, for appellant.
H. F. Bonno, for appellees.
Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ARNOLD
This is an appeal from the orders of the Orphans' Court of Northumberland County at the instance of Joseph L. Randall, Administrator.
Samuel S. Randall and Anna Randall, his wife, died by accidental means May 30, 1951, each of them intestate. Samuel S. Randall left to survive him as his heirs at law, three sons by a former marriage: Solomon, Max, and Joseph L. Randall. Anna Randall left to survive her as her heir at law, Frank Tortorello, her father. Subsequent to negotiations, the heirs at law, together with Bessie Randall (former wife of the decedent, Samuel .s. Randall) entered into a written agreement concerning the settlement of these estates. The portion of the agreement relevant to this issue provides:
"1. The said Joseph Randall shall qualify as administrator of the estate of Samuel Randall. 2. Daniel J. Tortorello ... shall qualify as administrator of the estates of Anna Randall and Ronald Randall.*fn1 ...
. b. Administrator's commissions in the amount of five per cent (5%) of the gross estate shall be paid as follows: (1) The amount allowed on the estate of Samuel Randall shall be paid to Joseph Randall. ... (3) The amount allowed on the estate of Ronald Randall shall be divided equally, share and share alike, between Joseph Randall and Daniel J. Tortorello."
Letters of administration were thereupon granted to Joseph L. Randall in Northumberland County in the estate of Samuel S. Randall, the latter being a resident of that county at the time of his death. Joseph L. Randall filed his first and final account of his administration. Exceptions to the following item of this account were filed on behalf of Solomon, Max and Bessie Randall: "Reserved for payment - Joseph L. Randall, administrator's commission ... $3,675.93." The exceptants contend that prior to the execution of the family settlement agreement of June 6, 1951, it was orally agreed between them and Joseph L. Randall that all commissions payable to him as administrator, and any commissions received from the estate of Ronald Randall, would be equally divided between Joseph L. Randall and the exceptants. The refusal to divide these commissions is the basis of the exception.
Joseph L. Randall filed motions to dismiss the exceptions, contending lack of jurisdiction in the orphans' court. The ...