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FERRAR ESTATE. (03/18/57)

March 18, 1957

FERRAR ESTATE.


Appeal, No. 107, Jan. T., 1957, from order of Orphans' Court of Lackawanna County, 1951, No. 601, in re estate of Albert Ferrar, deceased. Order affirmed.

COUNSEL

Earl V. Compton, with him James W. Scanlon, William J. Garvey, and Compton, Handler & Berman, for appellant.

Russell J. O'Malley, with him Sheldon Rosenberg, and Nogi, O'Malley & Harris, for appellee.

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

Author: Cohen

[ 388 Pa. Page 106]

OPINION BY MR. JUSTICE COHEN

This appeal is from an order of the Orphans' Court of Lackawanna County dismissing appellant's exceptions and confirming a joint account filed by a removed administrator and an administrator pro tem. The account states assets to be turned over to an administrator d.b.n.

Albert Ferrar died intestate and his son Francis was appointed administrator of the decedent's estate by the Orphans' Court of Lackawanna County. Later,

[ 388 Pa. Page 107]

Carmalia Horetsky, a daughter of the decedent was appointed administratrix pro tem. Francis Ferrar subsequently was removed as administrator, and his brother Anthony was appointed administrator d.b.n. upon his entry of a surety bond in the sum of $20,000.

The estate instituted an assumpsit action against Ray E. Steward in the Court of Common Pleas of Dauphin County. Defendant Steward counterclaimed against the estate and a verdict was entered in his favor in the amount of $8,042.01. The Court of Common Pleas of Dauphin County set aside the verdict and ordered a new trial. Prior to the order of a new trial a final account was filed by the removed administrator and the administratrix pro tem in the orphans' court. The accountants made no provision for the payment of Steward's claim and took a credit of $13,158.95 for distribution previously made to the heirs of the decedent without order of court. The final account showed a balance of $25,426.97, consisting in the main of cash and securities. Steward, the only creditor of the estate, filed exceptions to the failure of the accountants to make provision for securing his claim and to the credit claimed by the accountants for distribution already made. On the adjudication the orphans' court directed that the sum of $10,000 be impounded as security for payment of Steward's verdict and dismissed his other exceptions. The orphans' court was then advised that a new trial had been granted by the Dauphin County Court in the matter of Steward's counterclaim against the estate. Thereupon, the orphans' court revoked the impounding order and dismissed all of Steward's exceptions. From this last order Steward now appeals.

This action of the orphans' court is governed by the Fiduciaries Act of 1949, Section 619, which provides as follows: ...


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