Appeal from decree of Orphans' Court of Montgomery County, No. 62,486, in re estate of Mary E. McClatchy, deceased.
Desmond J. McTighe, with him Philip D. Weiss, and McTighe, Koch, Brown & Weiss, for appellant.
J. Brooke Aker, with him Frank I. Ginsburg, F. Martin Duus, and Chadwick, Petrikin, Ginsburg & Wellman, and Smith, Aker, Grossman & Hollinger, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Mr. Justice Musmanno did not participate in the decision of this case. Concurring and Dissenting Opinion by Mr. Justice Roberts. Mr. Justice O'Brien joins in this opinion.
This is an appeal from a decree of the Orphans' Court of Montgomery County dismissing objections to the account of John B. McClatchy, executor of the estate of Mary E. McClatchy, deceased. This case was tried as a companion case in the court below with McClatchy Page 244} Estate, also decided today. 433 Pa. 232, 249 A.2d 330 (1969).
Appellants, heirs under the will of decedent, seek to surcharge the executor for his failure to include the following items in decedent's estate:
(1) $59,849.25 paid to the 69th Street Community House Corporation for life insurance premiums advanced on policies on the life of decedent's husband.
(2) Amounts paid by the estate for the executor's commission and attorneys' fees.
I Life Insurance Premiums
Between 1946 and 1957, the 69th Street Community House Corporation paid life insurance premiums on policies owned by decedent on the life of her husband in the amount of $59,849.25. The executor's account disclosed that Community was reimbursed by the estate for the premiums paid.
Unlike the situation which existed in the McClatchy Estate, supra, there is no evidence that there was any oral or written agreement between decedent and Community for repayment of those premiums. In order to justify this payment the executor relies exclusively upon testimony concerning a statement made by decedent's husband to an employee of Community. However, there is no evidence that in making this statement decedent's husband was acting as an agent of decedent and/or had the power to commit her or her estate to any obligation. Consequently, ...