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BROSE ESTATE (11/15/66)

decided: November 15, 1966.

BROSE ESTATE


Appeals from decree of Orphans' Court of Allegheny County, No. 3136 of 1963, in re estate of Nicholas A. Brose, deceased.

COUNSEL

Martin E. Geary, for executor, appellant.

Donald E. Rohall, for legatees, appellants.

George R. Craig, for widow, appellee.

Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Roberts dissents and would affirm the decree below.

Author: Eagen

[ 423 Pa. Page 422]

Nicholas A. Brose died testate on June 10, 1963, leaving his estate to a niece and nephew. Louis T. Katusin was named executor. His widow filed an election to take against the will.

Litigation ensued involving the ownership of a series of bank accounts, and the dispute eventually came before this Court for review. See, 416 Pa. 386, 206 A.2d 301 (1965), and 420 Pa. 643, 218 A.2d 561 (1966). It was finally determined that the decedent's estate and the widow were each entitled to one-half of the proceeds of these accounts, and since the widow had already withdrawn sums in excess of the amount to which she was legally entitled, she was specifically directed to pay over to the executor of the estate a sum equal to the amount of that excess ($20,241.48).

Unfortunately, the litigation did not end there. Subsequently, the executor secured citations in the Orphans' Court of Allegheny County against the widow to show cause why she should not comply with the previous court decrees and pay over to the estate the moneys due. The widow secured a citation against the executor to compel him to file an inventory and accounting of the estate. The niece and nephew, joined in by the executor, secured a citation to show cause why the widow's election to take against the will should not be revoked.

[ 423 Pa. Page 423]

The court below sustained preliminary objections to and dismissed the petition to revoke the widow's election; it directed the executor to file an inventory and accounting of the estate and to include therein as an asset of the estate "the monies of the estate in the possession of" the widow. It postponed action on the citations against the widow seeking to compel payment of her indebtedness to the estate until the audit. Appeals were filed from the final decree.

In directing the executor to account without first obtaining payment of the moneys due the estate from the widow, the court below reasoned that since the funds owed were not needed to pay any existing claims against the estate, and the widow was clearly entitled to receive from the estate an amount greater than the sum she owed, that the whole matter could be resolved in an equitable and practical manner at the time of audit.

While we can understand the basis of the court's decision in respect to this facet of the dispute, ...


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