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FOSTER v. SCHMITT (03/15/68)

decided: March 15, 1968.

FOSTER
v.
SCHMITT, APPELLANT



Appeal from decree of Court of Common Pleas No. 7 of Philadelphia County, March T., 1965, No. 3519, in case of Margaret Foster, executrix of estate of Ella Conway, deceased v. Margaret Morgan Schmitt.

COUNSEL

I. Bernard Rotberg, for appellant.

Milford J. Meyer, and Brodsky, Brodsky & Brodsky, and Meyer, Lasch, Hankin & Poul, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell concurs in the result.

Author: Roberts

[ 429 Pa. Page 103]

This case presents still another variation of the oft-litigated theme in which the "devoted friend" and her courtroom adversary, the decedent's relative, clash over the estate of a poor elderly lady who lived in filth and squalor, but actually owned quite a bit of money.

[ 429 Pa. Page 104]

On August 27, 1957, Ella Conway, the decedent, had a sum of money in an account at the Western Savings Fund Society. It is undisputed that on that date she executed a power of attorney over the account in favor of her close friend and companion for many years, the appellant, Margaret Morgan Schmitt. On March 10, 1961, pursuant to this power of attorney, the appellant withdrew decedent's entire balance and redeposited it in a new account titled only in the appellant's name. There the money remained until June 12, 1964 when it was withdrawn in cash by Mrs. Schmitt.

With the recitation of these facts, the area where the parties' respective stories converge comes to an abrupt end. Following a trial in equity, the chancellor concluded that appellee, Margaret Foster (decedent's executrix, niece, and sole beneficiary under Ella Conway's will), was entitled to have a trust impressed upon the money found to have been misappropriated by appellant for her own use. Mrs. Schmitt was thereafter ordered to pay $8,796.35 with interest thereon from June 12, 1964 to the appellee. It is from this decree that Mrs. Schmitt appeals.

According to appellee, the March 10, 1961 transaction, in which appellant withdrew decedent's funds from Western Savings Fund, was accomplished without the knowledge or consent of Ella Conway. Mrs. Schmitt, however, vigorously maintained throughout these proceedings that Ella Conway not only consented to this withdrawal, but in fact accompanied her to the bank to facilitate the transaction. According to appellant, Ella Conway wished her to have not only control but also actual possession of the money because at that time Miss Conway was being pressed by the Philadelphia Department of Licenses and Inspections to make some much needed repairs to her property. Apparently decedent felt that she could escape the

[ 429 Pa. Page 105]

Department if it appeared she had no money, and according to appellant, Miss Conway told her that she (Mrs. Schmitt) would receive all the money in any event when decedent died.*fn* Although the record is unclear as to whether Miss Conway did or did not know of the March 10, 1961 transaction, we find a resolution of this controversy unnecessary, for even assuming that decedent knew of and consented to the transfer of funds, Mrs. Schmitt still cannot prevail.

In May of 1964 decedent was hospitalized. It was also at approximately this time that she began to make demands on appellant for the return of her money. It was admitted by Mrs. Schmitt that Miss Conway, on several occasions, demanded that the money be returned. Mrs. Schmitt, however, claimed, and sought to prove, that she did in fact return the money to Ella Conway about six months before the latter's death on January 18, 1965. According to appellant, the June 12, 1964 cash withdrawal was made in contemplation of the money's return, ...


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