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EARNSHAW APPEAL. (09/11/58)

September 11, 1958

EARNSHAW APPEAL.


Appeal, No. 168, Oct. T., 1958, from decree of Court of Common Pleas of Chester County, Misc. No. 9009, in re George E. Earnshaw, Jr. Decree affirmed.

COUNSEL

Lawrence E. MacElree, with him MacElree, Platt & Marrone, for appellant.

Robert S. Gawthrop, Jr., with him William H. Lathrop, and Gawthrop & Greenwood, and Montgomery, McCracken, Walker & Rhoads, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Wright

[ 187 Pa. Super. Page 126]

OPINION BY WRIGHT, J.

On February 28, 1939, George E. Earnshaw, Jr. was adjudged by the Court of Common Pleas of Chester County to be an incompetent, and the National Bank of Chester County and Trust Company and Edna L. Hagert were appointed guardians of his estate. Edna L. Hagert died May 10, 1956. George E. Earnshaw, Jr. is the beneficiary of a trust under the will of his deceased father, George E. Earnshaw, and the income therefrom is paid by the trustee to the surviving guardian. On September 12, 1956, George E. Earnshaw, Jr. petitioned the court below to find that he had become competent, and to remove the guardian. A rule was granted, to which answers were filed by the next of kin of George E. Earnshaw, Jr., namely, Jeannine L. Earnshaw and George E. Earnshaw, 3rd, denying that George E. Earnshaw, Jr. had become competent. After a full hearing, the court below, on November 4, 1957, found that George E. Earnshaw, Jr. was still an incompetent. A decree was accordingly entered dismissing the petition. George E. Earnshaw, Jr. has appealed.

Section 323 of the Incompetents' Estates Act of 1951*fn1 reads as follows: "The court, upon petition and

[ 187 Pa. Super. Page 127]

    after such notice as it shall direct, may find, after a hearing at which good cause is shown, that a person previously adjudged incompetent has become competent". Under this statutory provision, the burden is placed upon the petitioner. The determination whether a person previously adjudged incompetent has or has not become competent, like an original determination whether the appointment of a guardian is necessary, Voshake's Estate, 125 Pa. Superior Ct. 98, 189 A. 753, is a matter which lies within the sound discretion of the court to which the application is made, and the appellate court will not reverse unless there has been an abuse of that discretion. The conclusion of the court below in such a proceeding will not be disturbed if it is warranted by the evidence: Arthur's Case, 136 Pa. Superior Ct. 261, 7 A.2d 55. See also Sigel Estate, 169 Pa. Superior Ct. 425, 82 A.2d 309.

Appellant was 51 years of age at the time of the hearing. He resides in East Bradford Township, Chester County, on a 68 acre farm which is a part of the trust. This farm consists entirely of pasture land and is not income producing. The guardian pays, inter alia, the real estate taxes, repairs and maintenance, fuel oil, car expense, and a considerable income tax. The guardian also pays directly to appellant the sum of $500.00 per month. In addition the guardian pays $300.00 per month to Mr. and Mrs. L. W. Zachary, who live with appellant on the farm. Mr. Zachary is appellant's companion.*fn2 Mrs. Zachery is the housekeeper. Of the $500.00 received monthly by appellant, he gives

[ 187 Pa. Super. Page 128]

$300.00 to the Zacharys for household expenses, and uses the balance for ...


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