Appeals, Nos. 111, 131, 132 and 133, March T., 1960, from decree of Orphans' Court of Mercer County, Sept. T., 1954, No. 45, in re estate of Hugh O. Jones, deceased. Decree, as modified, confirmed.
Philip E. Brockway, with him Brockway & Brockway, for executor.
W. Walter Braham, with him Thomas C. Cochran, Jr., for executor of widow and executors of appointees of widow.
David Goodwin, with him Fruit & Francis, for appointee of testator.
Milford L. McBride, Jr, with him Milford L. McBride, and McBride and McBride, for appointee of testator.
Before Jones, C.j., Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES.
Hugh O. Jones, a resident of Mercer County, died testate on March 4, 1950, survived by his widow, Ella Jones, two brothers, T. R. Jones and William Jones, and two sisters, Mary Jones Lees and Margaret Jones Egan. On March 9, 1950, letters testamentary in his estate were issued to the First National Bank in Sharon, Pa., and C. B. Lartz.*fn1
By his will - dated May 14, 1943 - the testator gave his entire estate to his executors for the following purposes: (1) to use as much of the income therefrom as might be necessary for the maintenance of his widow, Ella Jones during her lifetime; (2) upon her death, to deliver one-half of the estate "to the person or persons to whom she directs by [her will], and in whatever manner or proportion she directs by [her will]; (3) the balance of his estate,*fn2 he gave to "such of [his] brothers and sisters as I may hereafter name in a codicil or codicils...". Testator gave his executors " full discretionary power" to select the property to be delivered, to place values upon each item of realty or personalty and to set apart items amounting to one-half the estate for his widow's appointees. Furthermore, the testator empowered both his executors and trustees "during the lifetime of my wife, and while said estate
is held in trust" to sell any of his estate and "invest the proceeds received therefrom" as they might deem for the best interests of his estate.
On September 22, 1948, testator executed a codicil to his will which purported, inter alia, to execute a power of appointment given testator under the will of his late father, Edward Jones. In this codicil he directed that the income from "one half of the estate owned by my father and myself" should be paid during her lifetime to his sister, Mary Jones Lees, and, upon her death, the principal of the estate should be divided equally between his brother, T. R. Jones, and his sister, Margaret Egan.
Ella Jones died December 26, 1951 and, by her will, appointed her two sisters, Bertha M. Young and Carrie M. Shoemaker, to take the one-half interest under testator's estate.*fn3
The executors filed an inventory and appraisement of the estate on May 14, 1951 - approximately fourteen months subsequent to their appointment - which were both incorrect and incomplete. Two months later the executors filed a so-called "Statement of Assets" which was also incorrect and incomplete. On June 26, 1952 the executors filed two so-called "Supplemental Statements of Assets" which were correct but incomplete.
On March 1, 1954 - nearly four years after the executors' appointment - Carrie M. Shoemaker and Bertha M. Young petitioned the Orphans' Court of Mercer County for a citation of the executors to show cause why they should not execute the second paragraph of testator's will - i.e., deliver one-half of testator's estate to petitioners as Ella Jones' appointees - and file an account of their administration of this estate. On August 14, 1954, the executors filed a first and final
account and an auditor was then appointed. After hearing, the court below, on December 9, 1955, denied the petition to compel the executors to execute the second paragraph of testator's will, noting in its opinion that an account had then been filed and an auditor appointed. An appeal from this order was taken to this Court and that appeal was quashed on the ground that the order was interlocutory. The auditor filed his report on September 8, 1958 in which he recommended that the executors be surcharged for certain losses and penalties incurred in connection with settlement of the inheritance tax.
Exceptions were filed to the auditor's report by the surviving executor of this estate and the executors of the estates of Carrie M. Shoemaker, Bertha M. Young, T. R. Jones, Margaret Egan and Mary Jones Lees.*fn4 On March 10, 1959, the Orphans' Court of Mercer County confirmed the auditor's surcharges and, in addition, surcharged the executors for their failure to invest the proceeds derived from the sale of the realty and their failure to deliver one-half of the realty to Ella Jones' appointees. From that decree these four appeals were taken.
In an attempt to clarify a much muddled situation we will treat the surcharges and their factual background separately.
Inheritance Tax Surcharges
On April 21, 1950 the executors paid $600 on account of inheritance taxes to the Commonwealth. On November 30, 1951 - one year and eight months after testator's death - the executors filed a Statement of ...