Appeal from decree of Orphans' Court of Delaware County, No. 905 of 1959, in re estate of Charles K. Sheldrake, deceased.
Melvin G. Levy, with him Stanley R. Kotzen, and McClenachan, Blumberg & Levy, for appellant.
Lewis B. Beatty, Jr., with him Robert W. Beatty, and Butler, Beatty, Greer & Johnson, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Concurring Opinion by Mr. Justice Jones. Dissenting Opinion by Mr. Justice Roberts.
Charles K. Sheldrake died testate November 8, 1959, possessed of an estate of over a million dollars. His will, dated August 14, 1959, was probated November 17, 1959. Testator created a trust which provided, inter alia, for a specific percentage of the net income to be paid to his widow, a specific percentage to his son and a specific percentage to his brother. Sheldrake's widow elected to take against the will, thereby raising the question of who should receive the share of the trust income which had been willed to her.
Although the decedent died in November, 1959, no account had been filed by the executors prior to January 16, 1963.*fn*
On January 16, 1963, the executors filed a petition for a declaratory judgment asking the Court to decide
the percentage of income which was payable to decedent's son and the percentage which was payable to decedent's brother. An answer was filed and the parties entered into a stipulation of facts. After a hearing, Judge Van Roden filed on July 6, 1964, an Opinion and a Decree dated July 2, 1964, resolving these questions of income distribution. From this (so-called) Decree an appeal was taken by decedent's brother.
There was no justification for a declaratory judgment proceeding and the Decree must be vacated.
In Mohney Estate, 416 Pa. 107, 204 A.2d 916, the Court said (pages 109-110): "Why declaratory proceedings were brought instead of the customary and appropriate way of filing an account and presenting the questions at ...