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WHITENIGHT ET AL. v. WHITENIGHT (06/28/71)

decided: June 28, 1971.

WHITENIGHT ET AL., APPELLANTS,
v.
WHITENIGHT



Appeal from judgment of Court of Common Pleas of Columbia County, March T., 1969, No. 227, in case of M. Paul Whitenight and Mathias C. Whitenight, executors of the estate of Mathias P. Whitenight, deceased v. Hazel Whitenight.

COUNSEL

J. Brooke Aker, with him Hervey B. Smith, Smith, Aker, Grossman & Holinger, and Smith, Eves & Keller, for appellants.

Franklin E. Kepner, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Cohen took no part in the decision of this case.

Author: Bell

[ 444 Pa. Page 33]

This case involves a dispute between the executors of the Estate of Mathias P. Whitenight and his widow Hazel over the ownership of certain bearer bonds.

Mathias P. Whitenight died testate on January 21, 1968. On January 30, 1968, letters testamentary were granted by the Register of Wills to M. Paul Whitenight and Mathias C. Whitenight, two sons of the testator who were apparently named as his executors. Whitenight's will does not appear in the record. However, the Opinion of the lower Court states that his will, after providing a $1,000 bequest to a grandson, gives his widow, Hazel Whitenight, the income for life from one-third of his residuary estate, the corpus to be divided at her death among his seven children (by a prior marriage) or their issue. Testator gave the remaining two-thirds of his residuary estate absolutely to his seven children or their issue. Although the will gives his widow Hazel less than her statutory share, the Court's Opinion states that she did not elect to take against his will.

[ 444 Pa. Page 34]

Shortly after testator's death, his executors and their attorney undertook to locate $18,000 of U. S. Treasury bonds which they believed were owned by the testator, but which were not found among his personal effects.

On April 20, 1968, the attorney for the Estate wrote a memorandum to all of the beneficiaries of the Estate, informing them that he had notified the United States Treasury Department that the bonds were missing. On April 30, 1968, testator's widow Hazel, who had lived with her husband in their jointly owned home, wrote to the attorney for the Estate stating that she had possession of these bonds. She added (1) that between 1962 and 1963, $6,000 (face value) of the Treasury bonds had been purchased with money supplied from her earnings as a teacher; (2) that $5,000 of the Treasury bonds had been given to her by her husband in repayment of a loan; and (3) that $5,000 of these Treasury bonds were given to her by her husband as a gift, $2,000 of which was to equalize gifts which her husband had made to his children.

On April 21, 1969, the executors brought this action in replevin against Hazel Whitenight, seeking possession of all the above-mentioned bonds. After Hazel filed an answer denying the executors' ownership (or right to possession), the case went to trial, on August 26, 1969, before the President Judge sitting without a jury.

The executors introduced into the record admissions which were contained in a stipulation by the parties that the testator had purchased the bonds with money from his individual bank account, and the dates of purchase and the amounts of the bonds purchased were set forth in detail. This was further corroborated by testimony and by the bank records. The executors thereby ...


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