Appeal, No. 167, Jan. T., 1963, from decree of Orphans' Court of Berks County, No. 39840, in re estate of Sallie R. Hosfeld, deceased. Decree affirmed in part and vacated in part.
Donald F. Spang, with him R. Solomon Bear, for appellant.
Allan L. Cutshall, with him Ralph J. Althouse, Jr., for appellees.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
Sallie R. Hosfeld (decedent), a resident of Berks County, died July 8, 1959. By the terms of her will, her estate was given to her son Clyde L. Hosfeld (Hosfeld) and her daughter, Effie Herber, share and share alike, and Hosfeld was appointed executor.
When Hosfeld filed his first and final account in the Orphans' Court of Berks County he failed to include among the assets of decedent's estate three bank accounts: (1) a savings account in the Hamburg Savings and Trust Company, held in the name of "Hosfeld's General Store, Sallie Hosfeld, Proprietor", wherein there was a balance of $11,591.91 on the date of decedent's death [Hamburg Account];*fn1 (2) a savings account in the Fogelsville National Bank, held in the names of "Hosfeld, Mrs. Sallie R., or Clyde L. Hosfeld or Mrs. Effie Herber", wherein there was a balance on the date of decedent's death of $6,679.88 [Fogelsville Account];*fn2 of Kutztown, held in the names of "Mrs. Sallie R. Hosfeld, or Mr. Clyde L. Hosfeld or Mrs. Effie Herber", wherein there was a balance on the date of decedent's death of $6,298.82 (Kutztown account).
Because of Hosfeld's failure to list these bank accounts as estate assets, Mrs. Herber filed exceptions to the account and, after hearing, the Ohphans' Court of Berks County held that all three bank accounts were decedent's sole property and surcharged Hosfeld in the amounts of the balances of these accounts.*fn3 From that decree this appeal was taken.
For many years subsequent to the death of her husband, the decedent continued the operation of a general store in Stoney Run, Berks County, wherein her son, Hosfeld, was employed. On November 14, 1958, while ill in a hospital, decedent executed a bill of sale which was witnessed by her minister and Mrs. Herber and which purported to convey to Hosfeld for $7,500 the store business. This bill of sale recited the sale by decedent to Hosfeld of: (a) "The entire inventory, furniture, fixtures, business assets and goodwill as a going concern of the general store business" including "all book accounts and accounts receivable, outstanding contracts, and all assets and property of any kind or nature whatsoever belonging or appertaining to said business"; (b) a certain described truck; (c) 22 shares of the capital stock of Lehigh Wholesale Grocery Company. Hosfeld now claims that the Hamburg account was included among the assets of the general store transferred to him by this bill of sale.
After a review of the testimony, an examination of the provisions of the bill of sale and the applicable law, we are in agreement with the court below wherein it states: "[Hosfeld] presumably contends that the words 'book accounts and accounts receivable, outstanding contracts and all assets and property of any kind or nature whatsoever belonging or appertaining to said business' include the bank account of the vendor, Sallie R. Hosfeld, the decedent, even though the consideration for the contract is only $7,500.00 whereas the bank account deposit at the time of its withdrawal by [Hosfeld] was $11,591.91. The intention of the parties to this contract must be ascertained not only from the actual words contained in the ...