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ROSINI ESTATE (07/27/67)

decided: July 27, 1967.

ROSINI ESTATE


Appeal from decree of Orphans' Court of Northumberland County, May T., 1963, No. 37, in re estate of Anna Maye Rosini, an alleged incompetent.

COUNSEL

Myron M. Moskowitz, for appellant.

W. Irvine Wiest, for appellee.

Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Roberts concurs in the result. Mr. Justice Cohen took no part in the consideration or decision of this case.

Author: O'brien

[ 426 Pa. Page 221]

On July 24, 1963, the Orphans' Court of Northumberland County adjudicated Anna Maye Rosini an incompetent and appointed her father, Carl D. Baker, guardian of her estate. The adjudication of incompetency resulted from a hearing which followed a petition filed by Lila P. Baker, who was represented by W. Irvine Wiest, Esquire. The petition contained the necessary averments of mental incompetency and inability to manage property. In connection with the incompetency proceedings, no citation was issued or served on the alleged incompetent, nor was any appearance ever entered on her behalf.

Pursuant to the adjudication of incompetency and his appointment as guardian, Carl Baker entered upon his duties and performed them until August of 1966. At that time, Dennis Rosini, the son of the alleged incompetent, filed a petition to remove Carl Baker as guardian of the estate on the grounds that he was wasting

[ 426 Pa. Page 222]

    and mismanaging the incompetent's estate; that he failed to perform the duties required of him by law; that the interest of the incompetent and her estate would be jeopardized by his continuation as guardian, as he was insolvent and had no assets of his own. The guardian, represented by the same W. Irvine Wiest who had represented the petitioner in the original petition for the adjudication of incompetency, filed an answer to the petition for removal.

On November 21, 1966, the incompetent, also represented by Wiest, petitioned the court for a decree vacating the adjudication of incompetency, for the reason that no citation had issued or been served upon her. The court entered the following decree: "And Now, November 21, 1966, upon consideration of the above and foregoing petition, taking judicial notice of the records of this court and finding that no citation was issued upon the petition of Lila P. Baker praying for a decree adjudging Anna Maye Rosini to be an incompetent and that the said Anna Maye Rosini was not present nor was she represented by counsel at the hearing held on said petition, on motion of W. Irvine Wiest, Esq., attorney for the petitioner, it is

"Ordered, Adjudged and Decreed that the decree of this court dated July 24, 1963, adjudging the said Anna Maye Rosini an incompetent and appointing Carl D. Baker to be the guardian of her estate is hereby vacated and set aside; and it is further

"Ordered, Adjudged and Decreed that the said Carl D. Baker shall deliver to the said Anna Maye Rosini all the assets of her estate which are now in his hands and shall account to her for the period of his administration thereof."

Dennis Rosini appealed from that decree, contending that the court below erred and exceeded its jurisdiction and authority in vacating and ...


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