Appeal from decree of Court of Common Pleas of Philadelphia County, June T., 1967, No. 843, in case of Benjamin E. Pope, Jr. v. Ruth M. Dascher, executrix of estate of Naomi M. Pope, deceased, Ruth M. Dascher, individually, Esther M. Boyd et al.
Edwin B. Barnett, for appellant.
Philip A. Bregy, with him William M. Marutani, Kalman E. Fine, and MacCoy, Evans & Lewis, for appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones.
The issue raised upon this appeal is whether a court of common pleas or the orphans' court had jurisdiction to determine the ownership of certain realty recorded in decedent's name at the time of death and of certain shares of corporate stock registered in decedent's name at the time of death. The Court of Common Pleas of Philadelphia County ruled that jurisdiction was in the orphans' court. The validity of that ruling is challenged on this appeal.
William Pope, in 1915, founded Crescent Nut and Chocolate Company (Crescent), a corporation, and, when he died in 1921, he was the sole owner of all Crescent's stock as well as the realty upon which the business was then being conducted. Under his will, the Crescent stock and the business realty passed to
his widow, Elizabeth Pope. Thereafter, allegedly, Robert and Benjamin Pope, sons of William and Elizabeth Pope, conducted Crescent's business. In 1932, without consideration, Elizabeth Pope transferred all the Crescent stock, except 10 shares, to Robert Pope and, on the same day, executed a will bequeathing the remaining 10 shares of Crescent stock and devising the business realty to Robert Pope.*fn1
Upon Elizabeth Pope's death in 1936, Robert Pope became the record owner of all Crescent's stock and the business realty and, allegedly, Robert Pope reaffirmed to his brother that he was holding all the aforementioned property for the mutual benefit of his brother and himself. Thereafter, when other business realty was acquired, title to such realty was taken in the names of Robert Pope, Annie Pope (Robert's first wife), and Benjamin Pope. In 1959, Benjamin Pope and his wife conveyed all their interest in the business realty to Robert Pope.*fn2
In 1960, Benjamin Pope died survived by his widow and one child, Benjamin Pope, Jr., the appellant. It is alleged that, subsequent to Benjamin Pope's death, Robert Pope repeatedly assured appellant that he would continue to hold half of the stock and the business realty for appellant's benefit and that, upon his death, the other half of the stock and business realty would pass to appellant, provided appellant did not demand a division of such property during Robert Pope's lifetime.
In 1963, Robert Pope conveyed the business realty to himself and his second wife, Naomi Pope, as tenants by the entireties and, allegedly, advised appellant and others that he and Naomi Pope were holding the assets for the mutual benefit of appellant, himself and Naomi Pope. In 1965, Robert Pope died survived only by his wife, Naomi Pope. Under his will, the Crescent stock and the business realty were left in trust for appellant provided Naomi Pope failed to survive Robert Pope for a period of 120 days but, in the event of her survival, such assets would pass to Naomi Pope. Naomi Pope survived Robert Pope for a period in excess of 120 days and it is alleged that she advised appellant she was holding all the assets for appellant's benefit, that she intended to terminate the constructive trust by transferring the assets to appellant while she lived, that she instructed ...