Appeal from decree of Orphans' Court of Delaware County, No. 670 of 1968, in re estate of Pasquale DiMarco, deceased.
Edward W. Mullinix, with him Dennis R. Suplee, Guy G. deFuria, and Schnader, Harrison, Segal & Lewis, and deFuria and Larkin, for appellant.
Garland D. Cherry, with him Leigh W. Bauer, and Kassab, Cherry, Curran & Archbold, and Diamond, Polsky & Bauer, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Jones. Dissenting Opinion by Mr. Justice Roberts.
This is an appeal from a decree of the Orphans' Court of Delaware County which removed a coexecutor of this estate and granted leave to the decedent's widow to file a petition to take against the decedent's widow to file a petition to take against the decedent's will even though the one year statutory period for such purpose had expired.
Pasquale DiMarco (decedent), a Delaware County resident, died June 27, 1965 survived by his widow, Anna, four daughters and a son, Robert DiMarco, the present appellant. The only property which decedent held in his own name at the time of his death consisted of shares of stock in five family-owned corporations; he owned five of the ten outstanding shares of four
corporations,*fn1 the balance of the shares in each corporation being owned by appellant, and 33 3/4 shares of the stock of another corporation to wit, Patann Corporation.*fn2 At the time of his death, decedent and his wife jointly owned other property.*fn3
On December 31, 1962, decedent and his wife executed a joint will, the presently pertinent portions whereof are:
"5. During the lifetime of Anna DiMarco, if she survives Pasquale DiMarco, there shall be paid to her all of the net income realized from the estate of Pasquale DiMarco. In the event said income shall be insufficient to maintain her in the same comfort to which she is accustomed, there shall be paid over to her, in addition as much of the principal of said estate as may be necessary, as determined by the trustees in the exercise of their discretion.
"7. We name Robert DiMarco, and Anna DiMarco and Pasquale DiMarco, or the survivor of them, as executors under this will. We name Robert R. DiMarco and Alexander Schamban as trustees herein.
"8. Said trustees shall continue to operate the enterprises which form part of our estate as long as they, in their discretion, deem it essential. Robert R. DiMarco shall remain in complete and full charge of these business enterprises and exercise his sole personal discretion
in the actual operation of each business as heretofore.
"(d) Our personal property, not limited to, but including, house furnishings, jewelry, etc., is bequeathed to our children, share and share alike. Shares of stock, specifically set forth hereinafter, are not included in this provision.
"(e) Corporate shares of stock, registered in either or both of our names, in P. DiMarco & Co., Inc., Karakung Corporation, and Wynnewood Lanes, Inc., are bequeathed to Robert R. DiMarco."*fn4
Named as residuary legatee under the will is appellant.
This will was prepared by Alexander Schamban, an attorney who had been counsel for decedent and his wife. After execution, the will was delivered into the possession of decedent and his wife and, after decedent's death, remained in the widow's possession until presented for probate. On July 26, 1965, this will was probated and letters testamentary granted to the widow and appellant.
More than three years subsequent to the grant of letters testamentary and more than two years after the expiration of the one year statutory period for making an election to take against the will,*fn5 the widow filed a petition to take against the will and another petition to remove appellant as coexecutor of the estate. Both petitions were joined for the purpose of hearings and, after hearings before the Orphans' Court of Delaware County, that court removed appellant as coexecutor and permitted the widow to take against the will even though her petition to do so was tardily filed.
In its opinion, the court below, in support of its decree, rationalized its views: (1) that there was sufficient evidence of fraud to justify the late filing by the widow of her election to take against the will and (2) appellant's removal as coexecutor was justified because no inventory or account had been filed, he had failed to provide ...