Appeal, No. 165, March T., 1956, from order of Court of Common Pleas of Westmoreland County, Feb. T., 1950, No. 161, in the matter of Sam Miller. Order as modified affirmed. Proceeding upon petition of guardian for distribution and discharge and upon petition of executors and rule to show cause why confirmation of accounts should not be set aside and reviewed. Decree entered discharging rule of executors and approving petition of guardian, before LAIRD, P.J., BAUER and O'CONNELL, JJ., opinion by LAIRD, P.J. Executors appealed.
Carroll Caruthers, for appellants.
Fred B. Trescher, with him Kunkle & Trescher, for appellee.
Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
We modify the decree of the court below by reducing the commission of the guardian from $9360 to $6240 and the attorney's fee for the guardian from $6000 to $4000. On the principal questions we affirm upon the following excerpts from the opinion of the court below:
"Many years prior to December 6, 1949, Samuel Miller and Wolf Daniels, both of Greensburg, formed a partnership for the purpose of conducting a scrap iron business in that municipality under the firm name of Daniels and Miller. Mr. Daniels and Mr. Miller were brothers-in-law, Mrs. Daniels being a sister of Sam Miller. On the death of Wolf Daniels, his interest in the partnership was taken over by his three sons, Jacob Daniels, Lewis Daniels and Harry Daniels. Therefore, on December 6, 1949, the partnership consisted of Sam Miller, a weak-minded person, and his three nephews, Jacob Daniels, Lewis Daniels and Harry Daniels; Sam Miller owning an undivided one-half interest and the three Daniels boys owning the other undivided half interest.
"Mr. Miller, more familiarly known as Sam Miller, had been under the care of a doctor for some time and on December 6, 1949, Lewis Daniels, a nephew and partner of the said Samuel Miller, filed a petition in this Court at the above number and term for the appointment of a guardian for Sam Miller, alleging that the said Sam Miller was mentally defective and unable to take care of his person, property and estate.
"A hearing was had on the said petition, on December 21, 1949, and after testimony taken, a decree was
entered adjudging the said Sam Miller incompetent and unable to take care of his property and estate, and the First National Bank in Greensburg, was appointed guardian of the estate of the said Sam Miller, alias dictus Samuel Miller.
"At the time the First National Bank in Greensburg was appointed guardian on December 21, 1949, it gave bond, and assumed the duties of the office, and filed numerous petitions in this court relative to its ward's property and estate. On May 11, 1951, a petition was filed by Jacob Daniels, Lewis Daniels and Harry Daniels, partners of Sam Miller, praying that the partnership theretofore existing between the petitioners and Sam Miller be dissolved.
"After due and careful consideration by the Court, the prayer of the petitioners was granted and the partnership was dissolved May 31, 1951 by decree of this Court. On June 4, 1951, a hearing was held to determine the value of the partnership property and business of the firm known as Daniels and Miller. Notice was given to all parties in interest at that time, namely, the next of kin, as provided by law. No one appearing in court or objecting to having the value of the partnership assets ascertained, fixed and determined, the value of Sam Miller's interest in the partnership of Daniels & Miller was established. Numerous witnesses were called and testified as to the value of the business of the partnership, at least one of the witnesses being engaged in the real estate business in Greensburg, Pennsylvania, and knowing the value of the real property, which was owned by the partnership; other witnesses being engaged in the scrap iron business and yet other witnesses being engaged in the motor vehicle business. The testimony of the witnesses, taken and filed at the above number and term, shows Mr. Miller's
interest in the partnership to have been approximately seventy or eighty thousand dollars.
"Jacob Daniels, Lewis Daniels and Harry Daniels, the former partners and nephews of Mr. Miller, offered to purchase the interest of Sam Miller, the weak-minded person, and pay therefor the sum of $70,000.00 in the manner following: $40,000.00 in cash and $1,000.00 per month for thirty months. In addition to the consideration of seventy thousand dollars for the one-half interest in said partnership, the former partners agreed further that if Sam Miller should live after the last payment of one thousand dollars had been made, then, the Messrs. Daniels, purchasers, would continue to pay to the guardian of Mr. Miller the sum of $350.00 per month as long as the said Sam Miller lived, he being their mother's brother.
"The Court, having in mind that best interests of the incompetent, approved the sale of the ward's interest in the partnership, to Jacob Daniels, Lewis Daniels and Harry Daniels, his former partners and nephews.
"It must be borne in mind that when the petition for the appointment of a guardian in this case was filed on December 6, 1949, the Act of 1951 had not been passed. Accounts up to that time, which were filed in the office of the Prothonotary, were duly advertised, confirmed nisi ...