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TROUT v. LUKEY. (01/04/61)

January 4, 1961

TROUT, APPELLANT,
v.
LUKEY.



Appeal, No. 33, March T., 1960, from decree of Court of Common Pleas of Washington County, No. 5516 of 1958, in equity, in case of Mary Trout, administratrix d.b.n.c.t.a. of estate of Walenty Fleszar, deceased v. Steve Lukey et ux. Decree vacated.

COUNSEL

Milton D. Rosenberg, with him Bloom, Bloom & Yard, for appellant.

F. G. Conte, with him George B. Stegenga, for appellees.

Before Jones, C. J., Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Bok

[ 402 Pa. Page 124]

OPINION BY MR. JUSTICE BOK.

This is plaintiff's appeal from the sustaining of preliminary objections in the nature of a demurrer to an amended complaint in equity.

The complaint avers that plaintiff, as executor of the Estate of Walenty Fleszar, confessed judgment against defendants on a judgment note for $12,500 dated June 28, 1954, and given by them to Fleszar before his death, which occurred on February 16, 1957.

[ 402 Pa. Page 125]

The husband defendant then filed a claim against the Estate based on an unrecorded judgment note dated January 19, 1953, for $29,987. Shortly before the hearing in Orphans' Court on this claim plaintiff filed interrogatories, the pertinent ones asking for what consideration the note had been given and in what form, if not for money or its equivalent. The husband defendant answered that the consideration was the amount of money owed to defendant by the deceased; part was cash advanced and part was services rendered by defendant. At the time these interrogatories were asked and answered, plaintiff did not know that there was on record another judgment note, dated December 3, 1952, also for $29,987, given by defendant to decedent; this note had been recorded on January 21, 1953, and satisfied on January 29, 1954.

The complaint also averred that the two notes for $29,987 were consideration for each other, and that by concealing this fact the husband defendant induced plaintiff to settle and satisfy the note for $12,500 by paying to this defendant the sum of $3,000. The settlement was made on April 28, 1958, and approved by the Orphans' Court.

The prayer of the complaint is to set aside the satisfaction of the $12,500 note and to order the defendants to return the settlement sum of $3,000.

Preliminary objections were filed to this complaint, which the court below sustained on the grounds that the complaint did not allege fraud with particularity, that the answers to the interrogatories were direct and forward and without concealment, that the defendants had no duty to disclose the existence of ...


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