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GIRSH TRUST. (03/21/63)

March 21, 1963

IN RE GIRSH TRUST.


Appeal, No. 276, March T., 1962, from decree of Orphans' Court of Cambria County, No. 30743, in the matter of third account of Morton Meyers, substituted trustee under deed of trust of Myers L. Girsh and Miriam H. Girsh. Decree affirmed; reargument refused April 30, 1963.

COUNSEL

Laurence H. Eldredge, for appellant.

Thomas D. McBride, with him Howard Gittis, Marlin B. Stephens, and Wolf, Block, Schorr and SolisCohen, for appellee.

Marvin Comisky, with him Marlin B. Stephens, Edwin P. Rome, and Blank, Rudenko, Klaus & Rome, for appellee.

Ella Graubart, and Patterson, Crawford, Arensberg & Dunn, for trustee, appellee.

Before Bell, C.j., Musmanno, Jones, Eagen, O'brien and Keim, JJ.

Author: Jones

[ 410 Pa. Page 458]

OPINION BY MR. JUSTICE BENJAMIN R. JONES

This proceeding seeks to rescind an inter vivos deed of trust wherein Miriam H. Girsh (appellant) and Myers L. Girsh (Mr. Girsh), then husband and wife, were the settlors, appellant the principal beneficiary, and Joseph Goldstein, appellant's father, was the sole trustee; the vital, although not the sole, issue is the mental competency of appellant on June 29, 1950, the date upon which she executed the trust deed.

On December 22, 1932, appellant and Myers Girsh were married. Of this marriage one child, Marjorie Girsh, now aged 24 years, was born. The parties, then living in Merion, Pa., separated on September 17, 1947, Mr. Girsh leaving the matrimonial domicile and setting up his own separate residence.*fn1

[ 410 Pa. Page 459]

In 1947, appellant became mentally ill, her illness being diagnosed as "paranoid schizophrenia", and she became a patient at Jefferson Hospital, Philadelphia, under the care of Dr. B. J. Alpers, a well known and highly respected neurologist and psychiatrist. On October 14, 1947, appellant became an in-patient in the Pennsylvania Hospital Institute of the Pennsylvania Hospital (Institute) in Philadelphia where she remained, under Dr. Alpers' care, until November 19, 1947 at which time she was transferred to the 44th Street division of the Pennsylvania Hospital (44th Street division),*fn2 where she remained until March 5, 1948, when, apparently then mentally competent, she was permitted to "go out on visit" to her home. On August 11, 1948, appellant was readmitted to the 44th Street division where she remained until December 4, 1948 when she was transferred to the Institute until March 1, 1949 at which time she was transferred back to the 44th Street division where she remained as a patient until April 27, 1949 when she was released. Upon her release, appellant went to New York, in the company of a nurse specially trained in psychiatry, for interpretive analytical therapy with Dr. John Rosen. On August 16, 1949 she was readmitted to the 44th Street division as a patient of Dr. Joseph Hughes.*fn3

With the Possible exception of a comparatively short period of time beginning March 5, 1948 when, as a result of forty insulin shock treatments, appellant

[ 410 Pa. Page 460]

    regained mental competency and returned to her home, it seems clear that, during the latter part of 1947 and throughout 1948 and 1949, appellant was mentally incompetent and a patient in mental institutions. As the court below found: "During 1949 [appellant] was a typical picture of paranoid schizophrenia. She was actively hallucinating, with auditory hallucinations, much purposeless laughing, many mannerisms, and very little insight into her illness. She had a good deal of impulsive behavior, ..." The record fully supports the conclusion that, during this period, appellant was mentally incompetent and unable to transact any business affairs with understanding.

Appellant remained at the 44th Street division until April 23, 1950 when she was permitted to "go out on visit",*fn4 in the company of two nurses specially trained in psychiatry, to a hotel in New York. The court below found that the purpose of sending her to New York was "to determine whether a change in environment would result in an improvement in her mental illness. This type of treatment known as milieu therapy was at that time an advanced treatment of paranoid schizophrenia being employed by psychiatrists in private practice."

From April 23, 1950 until June 30, 1950, appellant, Mrs. Yetta Goldstein [her stepmother] and two nurses lived in a New York City Hotel. On five occasions - April 29, May 6, May 13, May 20 and May 27 - Dr. Hughes visited appellant in New York and on five occasions - May 2, June 1, June 8, June 24 and June 27 - appellant,

[ 410 Pa. Page 461]

    accompanied by one of her nurses, went to Philadelphia and consulted with Dr. Hughes.

It is to be noted that during the period from October 14, 1947 until June 28, 1950 - approximately 32 1/2 months - appellant was confined in mental institutions approximately 21 1/2 months; that only one definite period of remission occurred, i.e., from March to August, 1948 when she was at home under the care of a nurse; that of the time thereafter when she was not in mental institutions, i.e., April to August 1949 (5 months) and from April 23, 1950 to June 28, 1950 (2 months), she was not only under the care of a psychiatrist but also experienced nurses.

On June 28, 1950, Mr. Goldstein in New York City presented two written agreements to appellant for execution, one a separation agreement and the other a trust agreement. The separation agreement was executed on June 28, 1950 by appellant and witnessed by Mr. and Mrs. Goldstein. The trust agreement, although dated June 28, 1950, was executed by appellant on June 29, 1950 and witnessed by Mr. and Mrs. Goldstein. Only the validity of the execution of this trust agreement is herein attacked.

Subsequent to the execution of both agreements, Mr. Girsh, on June 30, 1950, instituted an action in divorce in Court of Common Pleas No. 1 in Philadelphia County against appellant alleging indignities as the ground for divorce. A divorce was granted on September 18, 1950 and, beginning October 1, 1950, Mr. Girsh commenced making payments of $1375 monthly to appellant and said payments continued at least up until the time of the hearings in this case.

On June 30, 1950, appellant, accompanied by Mrs. Goldstein and a graduate nurse, went to Johnstown, appellant's home town and the place of abode of her father and stepmother, where she remained until November 3, 1950. During this period Mrs. Girsh remained

[ 410 Pa. Page 462]

    under the care of Dr. Hughes and, on at least one occasion, July 14, 1950, went to Philadelphia for an examination by Dr. Hughes.

On November 3, 1950, appellant was admitted, under Dr. Hughes' care, to Roseneath Sanitorium near Philadelphia, an institution which cared for mentally ill patients. Appellant's condition deteriorated and in January, 1951 she was readmitted, as a patient of Dr. Alpers, to the Institute where she remained continuously until May 23, 1955, a period of four and one-quarter years, at which time she was discharged. It is undisputed that since May 23, 1955 appellant has been mentally competent and has made a remarkable recovery.

Under the trust agreement, Mr. Joseph Goldstein was named as the sole trustee but, prior to his death in August, 1950, under the authority vested in him by the trust agreement, Mr. Goldstein selected Morton Meyers, Esq. of Johnstown as his successor-trustee and Mr. Meyers now serves in that capacity. Mr. Meyers, as trustee, has filed three accounts in the Orphans' Court of Cambria County; the first account was filed in 1954, the second account in 1957, and the third account on June 28, 1960. At the audit of the third account, appellant filed this petition to rescind the trust and to have the balance in the hands of the trustee awarded to her on the ground that she was mentally incompetent at the time she signed the trust agreement on June 29, 1950. To this petition separate answers were ...


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