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ZEITCHICK ESTATE v. ZEITCHICK (09/11/69)

decided: September 11, 1969.

ZEITCHICK ESTATE, TO USE, APPELLANT,
v.
ZEITCHICK



Appeal from judgment of Court of Common Pleas of Philadelphia County, July T., 1968, No. 1488, in case of estate of Harry Zeitchick, deceased, to use of Sophie Zeitchick, v. Milton Zeitchick et al.

COUNSEL

Leonard B. Rosenthal, with him Abrahams & Lowenstein, for appellant.

Paul Yermish, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 215 Pa. Super. Page 107]

This matter arose before the lower court upon defendant's preliminary objections to a writ of attachment execution. The lower court sustained the preliminary objections and dissolved the writ. Thereafter, plaintiff filed an appeal to our court.

The relevant facts, as they appear in the record, are as follows:

[ 215 Pa. Super. Page 108]

Plaintiff obtained a judgment against defendant Milton Zeitchick and issued a writ of attachment execution against Metropolitan Life Insurance Company (hereafter called Metropolitan) as garnishee, attaching certain specific insurance policies on the life of defendant's deceased father. These policies provided for periodic payments to defendant under a plan elected by his father during his lifetime.

Plaintiff served interrogatories upon the garnishee, Metropolitan, in accordance with the procedures set forth in Pa. R. C. P. No. 3142, and Metropolitan filed answers thereto.

Subsequently, defendant filed preliminary objections to the writ of attachment alleging that the property was exempt from execution by reason of a spendthrift clause contained in the insurance policies.*fn1 Plaintiff filed an answer to the objections alleging that there was no spendthrift clause prohibiting the attachment of proceeds and, therefore, that the policies were not exempt.

The petition and answer of the parties, therefore, raised a specific question of fact relating to the existence of a spendthrift clause in the policies. Nevertheless, depositions were never taken in this case, nor were the insurance policies attached to the pleadings by either party. Despite the absence of this information, however, the lower court found that the policies did contain a spendthrift clause by referring to the garnishee's answers to interrogatories.

The lower court stated: "The answers to the interrogatories averred that, pursuant to the insurance policies attached, decedent during his lifetime entered into a ...


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