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JOHNSON ESTATE. (05/02/61)

May 2, 1961

JOHNSON ESTATE.


Appeal, No. 59, March T., 1961, from order of Orphans' Court of Clarion County, No. 111 O.C. 1958, in re estate of Harriet I. Johnson, deceased. Order reversed.

COUNSEL

Harry L. Siegel, with him W. P. Geary, and Siegel and Siegel, for appellant.

J. Villard Frampton, with him H. Ray Pope, Jr., Frampton & Courtney, and Pope & Alexander, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Jones

[ 403 Pa. Page 478]

OPINION BY MR. JUSTICE BENJAMIN R. JONES.

Harriet I. Johnson, a resident of Clarion County, died, testate, on December 19, 1950. By her will she created a trust of her residuary estate with the First National Bank of New Bethlehem, Pa. [now First Seneca Bank and Trust Company] as trustee. Under the terms of the trust the net income is payable to Emma I. Jacoby [decedent's sister] during her lifetime; after her death, the net income is payable to Samuel O. Jacoby [decedent's brother] during his lifetime; upon the death of the survivor of both life beneficiaries, the trust will terminate. Upon the termination of the trust, the trustee is directed to pay over, inter alia, "Twenty-five per centum (25%) [of the residuary estate]... to the niece of my late husband, F. R. Johnson, Florence Billmyer, if she shall be living at the time of the distribution of my residuary estate". (Emphasis supplied) In the event that Florence Billmyer died prior to that event her share was to be paid to Bucknell University.

Samuel O. Jacoby [a life beneficiary] died April 28, 1955 and Florence Billmyer, [the possible remainderman] died on August 8, 1957. Emma I. Jacoby [the other life beneficiary] is still living.

On November 25, 1958, Florence Billmyer's personal representative [Billmyer Estate] petitioned for a declaratory judgment in the Orphans' Court of Clarion County. This proceeding sought the construction and interpretation of the eleventh paragraph of decedent's will and a declaration that Florence Billmyer at the time of her death was vested with a twenty-five percent interest in the trust principal, subject

[ 403 Pa. Page 479]

    to the rights in such trust of Emma I. Jacoby, the surviving life beneficiary. The First Seneca Bank and Trust Company, successor trustee, filed an answer to the merits and Bucknell University filed preliminary objections which averred that the court lacked jurisdiction to enter a declaratory judgment because of the availability of another remedy, i.e., audit of the trustee's account and distribution in the Orphans' Court. The court sustained the preliminary objections and dismissed the declaratory judgment petition. From that ruling, this appeal has been taken.

Bucknell contends that the question whether Florence Billmyer's interest, under this will, was vested, subject to the life beneficiary's interest, or was contingent upon Florence Billmyer's survival of the surviving life tenant can only be resolved at the time of the audit of the trustee's account, which account will be filed upon the termination of the trust [i.e., the death of the surviving life beneficiary] and, therefore, declaratory judgment will not lie. Conceding that such question could be resolved at the time of audit, nevertheless, the Billmyer Estate contends that declaratory judgment will lie regardless of the availability of this other remedy, a remedy which cannot be pursued until an uncertain time in the future, i.e., when the surviving life tenant dies.*fn1

The present issue is narrow: does the availability of this other remedy bar a declaratory judgment proceeding to construe and interpret this will? In determining this issue, we assume, with the parties and the court below, that the availability of this other remedy

[ 403 Pa. Page 480]

    constitutes the only bar to the entertainment of jurisdiction of this proceeding and that all other jurisdictional requirements, i.e., presence of an "actual controversy", the joinder of all necessary parties, etc., for a declaratory judgment are present.

On June 18, 1923, the legislature adopted the provisions of the Uniform Declaratory Judgments Act, a "remedial" statute whose stated purpose was "to settle and to afford relief from uncertainty, and insecurity with respect to rights, status, and other legal relations" and a statute was mandated by the legislature "to be liberally construed and administered".*fn2

Section 6 of the Pennsylvania Declaratory Judgments Act*fn3 as originally enacted - identical with the corresponding section of the Uniform Act - provided "The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding."

Until 1935 the interpretation and construction of section 6 by our Court was at variance with the interpretation and construction placed thereon by many other jurisdictions in the United States. The tenor and effect of many of our decisions was that, if there existed another available remedy, a declaratory judgment proceeding would not lie.*fn4 However, during this

[ 403 Pa. Page 481]

    same period of time, the court did entertain declaratory judgment in cases involving the interpretation of wills

[ 403 Pa. Page 482]

    even though another remedy was available.*fn5 It is further noted that the Court during this period entertained a great many non-will cases by way of declaratory judgment where there was another remedy available to the parties.*fn6

While a review of the decisions of this Court during that period does indicate some inconsistencies, it, nevertheless, was the position of our Court that, present another available remedy, declaratory judgment would not lie. By virtue of that position declaratory judgment became an exceptional or extraordinary, not an alternative, remedy.

In order to bring Pennsylvania in line with other jurisdictions in the interpretation of section 6, in 1935 an amendment to section 6 was drafted, presumably by ex-Chief Justice VON MOSCHZISKER after his retirement from the bench.*fn7 Such amendment provided: "Section 6. Discretionary. Relief by declaratory judgment or decree may be granted in all civil cases where an actual controversy exists between contending parties or where the court is satisfied that antagonistic claims are present between the parties involved which indicate imminent

[ 403 Pa. Page 483]

    and inevitable litigation, or where in any such case the court is satisfied that a party asserts a legal relation, status, right, or privilege in which he has a concrete interest and that there is a challenge or denial of such asserted relation, status, right, or privilege by an adversary party who also has or asserts a concrete interest therein, and the court is satisfied also that a declaratory judgment or decree will serve to terminate the uncertainty or controversy giving rise to the proceeding. Where, however, a statute provides a special form of remedy for a specific type of case, that statutory remedy must be followed; but the mere fact that an actual or threatened controversy is susceptible of relief through a general common law remedy, or an equitable remedy, or an extraordinary legal remedy, whether such remedy is recognized or regulated by statute or not, shall not debar a party from the privilege of obtaining a declaratory judgment or decree in any case where the other essentials to such relief are present;..."

This proposed amendment clearly provided that the only other remedy which would bar declaratory judgment was a "special form of remedy for a specific type of case" and the fact that another remedy was available would not constitute a bar to declaratory judgment. When that amendment was adopted by the legislature, it was further amended in the following manner: "... but the case is not ripe for relief by way of such common law remedy, or extraordinary legal remedy, or where the party asserting the claim, relation, status, right, or privilege and who might bring action thereon, refrains from pursuing any of the last mentioned remedies. Nothing herein provided is intended to or shall limit or restrict the general powers or jurisdiction conferred by the act hereby amended; but proceeding by declaratory judgment shall not be permitted in any case where a divorce or annulment of

[ 403 Pa. Page 484]

    marriage is sought." The legislature in the Act of April 25, 1935, P.L. 72, $1u*fn8 adopted the language of both the so-called VON MOSCHZISKER amendment and ...


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