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RABE ESTATE (01/30/70)

decided: January 30, 1970.

RABE ESTATE


Appeal from decree of Orphans' Court of Washington County, No. 145 of 1961, in re estate of David L. Rabe, an alleged incompetent.

COUNSEL

Frank C. Carroll, and McIlvaine, Murphy, Carroll & Phillips, for appellant.

No argument was made nor brief submitted for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Jones and Mr. Justice Roberts concur in the result.

Author: O'brien

[ 437 Pa. Page 74]

This is an appeal from the decree of the Orphans' Court of Washington County, dismissing a petition for leave to preserve assets of an incompetent's estate, filed by the guardian of that estate. David L. Rabe was adjudicated an incompetent in June of 1961, and in July of that year, the Mellon National Bank and Trust Company was appointed guardian. Early in 1964 an interim account was filed and at the same time, the guardian petitioned for leave to preserve assets of the estate. The asset involved was a parcel of real estate in Monongahela, Washington County, Pennsylvania owned by the incompetent and his wife, Evelyn Rabe, as tenants by the entireties. The property had previously been appraised at $14,000.00 and the balance of the mortgage at the time of the declaration of the incompetency was approximately $6,000.00.

The guardian asked for leave to pay all amounts due on the mortgage to prevent a threatened foreclosure. The Court ordered the payments on March 5, 1964, and the amount authorized was in excess of $2,750.00 so that the principal balance of the mortgage on June 25, 1964 was $5,251.57.

The court, in its adjudication, indicated that there were creditors in excess of the assets of the incompetent's estate and indicated that the best interests of the incompetent's estate would be served by a prospective sale of the property, thus realizing some equity for both the incompetent and his wife.

The incompetent's wife continued to occupy the residence and was later joined by a divorced daughter and her two children. The incompetent continued to reside at Torrance State Hospital and, because there had apparently been strained relations between the incompetent

[ 437 Pa. Page 75]

    and his wife, on the occasions of any temporary release, he would reside with his widowed mother.

No payments were made on the mortgage after that ordered by the court. No further taxes were paid nor any insurance premiums. Foreclosure was again threatened and the petition involved in the instant case was presented January 31, 1968 to stay the execution, pay all delinquent amounts due on the mortgage and pay all taxes, insurance premiums, sheriff's costs and attorney's fees.

There were 38 mortgage installment payments due, each for $72.58. The delinquency in principal was $1,526.78; the delinquency in interest was $795.78; insurance premiums of $138.40 and taxes of $638.52 were due. Sheriff's costs were $292.13 and attorney's fees were $270.18. A total payment of at least $3,661.79 was required to rescue the property from sale. At the time of the hearing, Wednesday, February 14, 1968, the guardian had in the account $7,500.00 in cash, a fixed asset, a 1955 DeSoto automobile, valued at $200.00, uninvested cash, accrued from income receipts, $962.02, or a total estate ...


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