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LARE ESTATE (10/09/69)

decided: October 9, 1969.


Appeal from decree of Orphans' Court of Allegheny County, No. 9036 of 1942, in re estate of Gertrude K. Lare, deceased.


Jack W. Plowman, with him Plowman and Spiegel, for appellant.

David McNeil Olds, with him John D. McIntyre, A. M. Wiggins, Jr., Richard B. Tucker, Jr., and Reed, Smith, Shaw & McClay, and Patterson, Crawford, Arensberg & Dunn, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Chief Justice Bell. Concurring and Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Cohen joins in this opinion.

Author: Bell

[ 436 Pa. Page 3]

This appeal has been taken by Marcellus R. Lare, Jr., surviving spouse and sole legatee of Gertrude K. Lare, deceased, from a Decree of the Orphans' Court of Allegheny County confirming the administrator's account filed by the Pittsburgh National Bank*fn1 (formerly Fidelity Trust Company).

The will and the facts and circumstances are unusual and have resulted in extensive litigation since the death of the testatrix in 1942. Gertrude's will was written on a blank check.

Our first encounter with this estate arose from an appeal by the present appellant from a Decree of the Orphans' Court which set aside the will of his wife as a forgery and removed the appellant as administrator c.t.a. We reversed the Orphans' Court on the question of forgery and directed that an issue devisavit vel non be awarded to the appellant: Lare Will, 352 Pa. 323, 42 A.2d 801. No trial was ever held on that issue. Subsequent to our decision, the Bank was appointed administrator de bonis non, although that part of the lower Court's Decree removing appellant as administrator c.t.a. was not disturbed by us. The Bank

[ 436 Pa. Page 4]

    then procured a citation directing the appellant Lare to file an inventory and account, and, after filing and audit, this appellant was surcharged over $9,000. The assets to which the Bank became entitled as administrator approximated $75,000, including the surcharge.

The Bank thereafter filed a first and partial administrator's account covering its administration from January 6, 1944 to October 28, 1949. Lare (the present appellant) filed objections to this account, principally with respect to (a) items of credit taken by the Bank as compensation for its services and (b) counsel fees. The objections were dismissed, the account confirmed, and another appeal was taken to this Court. We modified the Orphans' Court Decree in that case by disallowing the administrator's claim for compensation based on principal, on the ground that such claim was premature until the final account: Lare Estate, 368 Pa. 570, 84 A.2d 334.

Subsequently, the Bank filed a second and partial account covering its administration from the time of the first accounting up to October 28, 1958. Lare filed exceptions to this account, but because of his ill health and because of efforts that were constantly being made to amicably resolve all differences among the interested parties in the will contest, the exceptions were never argued. Upon petition of the parties, the account and the exceptions were withdrawn in January 1963. It appears now that the will contest has finally been brought to a mutually agreeable settlement, with the will of Gertrude K. Lare having been restored to probate. The Bank has filed a final account covering its administration from the date of its first account to February 26, 1964. This was supplemented to April 13, 1964.

The Bank's final account shows that it collected during the course of its administration approximately $370,000 of income. This consisted principally of dividends

[ 436 Pa. Page 5]

    on the major holding of the estate -- United Pocahontas Coal Company stock. In view of the fact that Lare would have been entitled to a portion of the estate regardless of the outcome of the will contest, the Bank regularly distributed to Lare approximately one-half of the cash income. These distributions or payments totaled in excess of $177,000 up to and including 1963. However, the remaining funds were deposited in a non-interest-bearing account with the Bank; and during its administration the Bank held uninvested funds of the estate, on which it paid no interest, in the amounts set forth in the following table:

Date Principal Income

7/1/44 $13,359.18 $1,940.22

1/1/45 9,693.57 4,254.26

7/1/45 8,855.32 5,098.72

1/1/46 7,820.82 6,944.60

7/1/46 7,818.02 7,056.28

1/1/47 7,812.78 11,102.87

7/1/47 7,769.28 10,413.67

1/1/48 10,818.29 19,260.78

7/1/48 12,318.29 17,371.84

1/1/49 12,318.29 37,947.70

7/1/49 14,282.68 39,366.63

1/1/50 .25 41,024.75

7/1/50 12,500.00 39,564.75

1/1/51 12,500.00 51,159.70

7/1/51 12,500.00 51,553.57

1/1/52 3,607.04 57,602.72

7/1/52 3,720.40 58,072.82

1/1/53 2,793.10 ...

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