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SCHULZ ESTATE. (03/17/58)

March 17, 1958

SCHULZ ESTATE.


Appeal, No. 380, Jan. T., 1957, from decree of Orphans' Court of Lancaster County, June T., 1917, No. 46, in re estate of Max A. Schulz, late of the Township of Lancaster, deceased. Decree affirmed.

COUNSEL

Daniel H. Shertzer, for appellant.

Robert Ruppin, with him Joseph R. Byars, for appellees.

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

Author: Jones

[ 392 Pa. Page 118]

OPINION BY MR. JUSTICE BENJAMIN R. JONES

This appeal presents a very narrow issue: does a Register of Wills have the authority to issue letters of

[ 392 Pa. Page 119]

    administration d.b.n.c.t.a. to one who is a stranger rather than to residuary legatees willing to act?

This estate has been the subject of extensive litigation, principally concerning the appointment of an administrator d.b.n.c.t.a.*fn1 The factual background of this estate was set forth at length by the late Mr. Justice STEARNE in Schulz Estate, 374 Pa. 459, 461-464, 98 A.2d 176: "Max Schulz, the testator, died May 30, 1917. He was possessed of a twenty-six acre farm and personal property estimated at $3,000. He was a widower survived by seven adult children. By his will the residuary estate, consisting of the above real and personal property, was devised and bequeathed to his executor with direction to convert the real estate into personalty within two years from his decease and to divide the fund into seven equal shares. He bequeathed an equal one seventh share to each of six named children.The remaining one seventh share (the subject of the present litigation) he directed to be retained by his executor in trust to 'invest so much thereof as he may deem necessary' in the purchase of a home for the use of his son Frank and the son's wife Lena, and to invest the balance and to pay the net income to the son and wife for their successive lives. Upon the decease of the life tenants the testator further directed that the house should be sold, and the entire corpus of the trust equally divided among the children of such life tenants. Testator's son Edward was named as executor.

"The record discloses that the executor filed neither an inventory nor an account and no home was ever purchased. Lena, the son's wife, predeceased her husband.

"On March 24, 1920, six of testator's children including the son Frank, the life tenant of a one-seventh share, deeded their respective interests in the real estate, and released their interests in the personal estate to Edward Schulz who was the executor trustee of testator's estate. The deed and release were recorded. The pivotal fact is that none of the children of Frank and Lena - five of the seven of whom were the minors - were joined, either in person or by guardian in such transfer and release.

"On February 24, 1921, John Schulz, a son of testator, petitioned the orphans' court for a citation upon the executor to file an account. On May 15, 1922, the court dismissed the petition on the ground that 'the estate has been settled, ...


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