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MARSHALL APPEAL (11/10/64)

decided: November 10, 1964.

MARSHALL APPEAL


Appeals from orders of Orphans' Court of Butler County, Sept. T., 1954, No. 101, and March T., 1955, No. 121, in re forfeiture of recognizance bond, estate of Paul E. Marshall.

COUNSEL

Saul J. Bernstein, with him Charles Chew, and Bernstein and Campbell, for appellants.

Lee C. McCandless, with him McCandless & McCandless, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen.

Author: Cohen

[ 416 Pa. Page 66]

This is an appeal from orders entered by the Orphans' Court of Butler County refusing a petition for remission of the forfeiture of a recognizance bond and refusing to strike from the record the judgment based on the forfeiture. It is but another legal facet of one situation which for too many years has been causing judicial concern. See Marshall Estate, 403 Pa. 348, 168 A.2d 745 (1961).

In 1945, Eileen Marshall was appointed the guardian for nine of her minor brothers and sisters-in-law. In 1954, her performance bondsman (as distinguished from her appearance or recognizance bondsmen who are petitioners in this case) alleged improprieties on the part of the guardian in performing her duties and requested the orphans' court either to relieve it of further liability on the bond or to take certain action. On August 30, 1954, the court directed the guardian to file an account and thereupon resign as guardian. It further directed her to turn over all the assets of her wards to a successor guardian which the court appointed. Upon the delivery of the assets the performance bondsman was to be relieved of further liability. The guardian filed the required account but failed to turn over the assets as directed. On petition of the performance bondsman the court issued an attachment directing the sheriff to bring the guardian before the court forthwith and granted a rule to show cause why the guardian had not complied with the court's order of August 30, 1954.

On July 25, 1955, the guardian was brought before the court by the sheriff. Upon the posting of a $5,000 appearance bond, approved by the court, the guardian was released. This bond is the subject matter of the present appeal and provided: "Know All Men By These Presents, That, whereas Employers Liability Assurance Corporation, Limited [the performance bondsman] . . .

[ 416 Pa. Page 67]

    petitioned the Orphans' Court of Butler County, Pennsylvania, for the attachment of the body of Eileen Marshall and for a decree adjudging her in contempt of compliance with a prior Order of Court.

"Now we . . . do hereby acknowledge ourselves . . . bound unto the Commonwealth . . . in the sum of . . . $5,000.00). . . .

"Now the condition of this obligation is such that if the said Eileen Marshall shall appear before the Orphans' Court . . . for adjudication on said alleged contempt at such time or times as the said Court shall fix, then this obligation shall be void, or else to remain in full force and virtue."

A hearing was set for July 27, 1955. Eileen Marshall appeared at the hearing and admitted that she had failed to comply with the August 30, 1954 order in that she had not turned over her wards' assets to the successor guardian as directed. She further admitted that there would be a deficiency in the accounts of two of her wards. On the same day the court entered its order on the contempt charge stating, inter alia, "Now, July 27, 1955, the rule is made absolute and Eileen ...


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