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DONSAVAGE ESTATE (03/22/66)

decided: March 22, 1966.

DONSAVAGE ESTATE


Appeal from decree of Orphans' Court of Luzerne County, No. 73 of 1964, in re estate of Benjamin Donsavage, deceased.

COUNSEL

Edward E. Hosey, with him John H. Hibbard, for appellant.

Nelson A. Bryan, with him John F. O'Malley and Joseph P. Olexy, for appellees.

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

Author: Jones

[ 420 Pa. Page 590]

Benjamin Donsavage (decedent), died, testate, on January 15, 1964, survived by a wife and three children. Decedent's will, after providing a bequest of tools and sporting equipment to a non-relative, left the rest of his assets "to my estate" and appointed one Helen Mockler as the "administrator" of his estate.*fn1 This will was probated and letters testamentary issued to Helen Mockler.

On April 14, 1964, the personal representative filed an inventory of the estate. Decedent's widow and children (petitioners), then petitioned the Orphans' Court of Luzerne County for a citation upon the personal representative to show cause why she should not file a supplemental inventory*fn2 to include therein, as assets of decedent's estate, certain specifically identified stock of twelve different corporations. The personal representative answered this petition and a hearing was held before the court. After hearing, the court directed the personal representative to include the stock in a supplemental inventory. From that decree the personal representative has appealed.*fn3

[ 420 Pa. Page 591]

At the hearing which led to the instant decree, the court considered two issues: (a) whether the personal representative should file a supplemental inventory and (b) the ownership of the stock vis-a-vis the estate and the personal representative as an individual. Initially, the propriety of such procedure must be determined. In Rogers Estate, 379 Pa. 494, 495, 496, 108 A.2d 924 we said: "In the settlement of a decedent's estate disputed title to property should not be determined upon exceptions to an inventory and appraisement which happens not to include the property claimed on behalf of the estate. The function and object of an inventory and appraisement in a decedent's estate is to fix presumptively the existence of property in the possession of the fiduciary and the value thereof. This is only prima facie evidence of ownership and value. Such listing does not affect the true ownership and value: [authorities cited]. The question of ownership is of interest to creditors, federal and state taxing authorities, and others. Such title, therefore, should not be finally determined until after an audit, with due statutory notice. . . . Nonetheless, the proper procedure is as we have hereinabove indicated and is, therefore, to be followed." See also: Higbee v. Koziol, 383 Pa. 116, 118, 117 A.2d 707. Rogers and Higbee would proscribe the procedure followed in the court below. However, by an amendment to the Fiduciaries Act of 1949, supra, the teaching of Rogers and Higbee was nullified:*fn4

[ 420 Pa. Page 592]

"Objections to the inventory may be made by any party in interest at any time up to and including the time fixed by rule of court for making objections to the first account of the personal representative. Such objections in the discretion of the court may be heard at the audit of the account. Objections to the inventory also may be made in the form of objections to the account." (Art. IV, § 405, added 1956, February 23, P. L. (1955) 1084, § 3, 20 P.S. § 320.405). Section 405 gives wide latitude to the court in determining when objections to the inventory may be heard and the procedure adopted by the court below was clearly within its discretion.

The petitioners, objecting to the inventory filed, averred, inter alia: (1) that "at the time of his death, [decedent] was the owner of the following listed corporate common stocks registered in his name: [followed by a list of stock]"; (2) this stock was an asset of decedent's estate which had not been inventoried. By way of answer, the personal representative averred, inter alia: (1) that, while the stock was registered in the decedent's name, "at the time of his death" he did not own them; (2) that the stock was not an asset of the decedent's estate; (3) that on January 12, 1964 -- three days prior to his death -- decedent had endorsed in blank the stock certificates and had delivered them as a gift to the personal representative as an individual and that such certificates had remained in her exclusive possession until decedent's death.

The petitioners' case rested solely upon those portions of the petition and answer -- offered and received in evidence -- which contained an admission that at the time of his death the stock certificates were registered in the decedent's name and had ...


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