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ROSE v. ROSE (06/25/56)

June 25, 1956

ROSE
v.
ROSE, APPELLANT.



Appeals, Nos. 136 and 173, Jan. T., 1956, from judgment of Court of Common Pleas of Montgomery County, June T., 1953, No. 142, in case of Benjamin Rose v. Bernard Z. Rose, Enid June Rose Sapowith, The Pennsylvania Company For Banking and Trusts et al. Judgment affirmed. Proceeding upon petition of plaintiff under Uniform Declaratory Judgment Act. Before FORREST, J., without a jury. Findings for defendants; exceptions by plaintiff sustained and judgment entered for plaintiff. Defendants appealed.

COUNSEL

Raymond Pearlstine, with him Thomas M. Garrity and Wisler, Pearlstine, Talone & Gerber, for appellants.

C. Brewster Rhoads, with him Harry C. Schaub, Sidney L. Wickenhaver and Montgomery, McCracken, Walker & Rhoads, for appellants.

Albert S. Oliensis, with him William H. S. Wells, Walter Biddle Saul, Paul A. Davis, IV, Smillie, Bean, Scirica & Davis, Levy & Oliensis, and Saul, Ewing, Remick & Saul, for appellee.

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

Author: Arnold

[ 385 Pa. Page 429]

OPINION BY MR. JUSTICE ARNOLD

In this action brought under the Uniform Declaratory Judgments Act of 1923, P.L. 840, as amended, 12 PS § 831 et seq., and tried by the court below without a jury,*fn1 defendants appeal from judgment entered for plaintiff by the court en banc.

Involved is the validity and effect of a written instrument executed solely by plaintiff, wherein he agreed to set over and bequeath at his death all of his stock in Best Markets, a large food chain, one-half to his only son, the defendant, Bernard Rose, and one-half to his son's children; not to sell or alienate the stock prior to his death; and agreed "to be legally bound by the terms of this instrument in accordance with the Uniform Written Obligations Act."

Plaintiff is president of the food chain, a highly successful enterprise which had its origin in a neighborhood store owned by him. Through his efforts, and those of his wife and son, the business prospered and grew into the present chain of stores. In the course of its growth, defendant-son was given stock in the corporation, and became the active manager thereof. Throughout there appears to have been considerable conflict between plaintiff and his son, but not of a nature to create legal difficulties until the events leading to the execution of the instrument in question; even though over a period of some 14 years the son had sought to have plaintiff relinquish control of the corporation with the avowed purpose of keeping it in the family.

Plaintiff's first wife, and mother of defendant-son, died on May 2, 1951. Plaintiff apparently became lonely and began paying attention to the former wife of

[ 385 Pa. Page 430]

    his nephew, whom he subsequently married. In the first week of July, 1951, the son learned that plaintiff contemplated immediate marriage and expressed his displeasure. Through Arthur Dennis, Esq., the attorney for the corporation (who also represented the son), it was arranged that a meeting be had in plaintiff's home on July 10, 1951, at which the intended wife would be present, and at which time the plaintiff would execute an instrument or instruments to assure the wishes of his son as to the stock in the company. The attorney ...


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