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DANZ ESTATE (10/12/71)

decided: October 12, 1971.

DANZ ESTATE


Appeal from decree of Court of Common Pleas, Orphans' Court Division, of Philadelphia, No. 470 of 1966, in re Estate of Joseph Danz.

COUNSEL

Joseph J. Carlin, for appellant.

John D. Lucey, Jr., with him James M. Marsh and LaBrum and Doak, for appellees.

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

Author: Barbieri

[ 444 Pa. Page 411]

This is an appeal from a decree entered by an Auditing Judge of the Orphans' Court Division of the Common Pleas Court of Philadelphia, modifying the schedule of distribution submitted by the executor, appellant

[ 444 Pa. Page 412]

    herein, in connection with his first and final account. Appellant filed exceptions to the decree which were dismissed by the Court en banc, which confirmed the decree absolutely. It is from that decision that appellant has filed this appeal.

The decedent, Joseph Danz, died on October 13, 1963 leaving a will which was duly probated and on which letters testamentary were granted to appellant. At the audit a claim against the estate was presented by decedent's nephew, Lothar Danz, and his wife, Frieda (nee Wiegand) Danz, appellees. The claim was based upon an alleged gift contract executed by the decedent on October 12, 1963, the day before his death, while he was hospitalized in Darmstadt, Federal Republic of Germany (hereinafter West Germany). The claim was denied by the accountant.

The amount claimed by appellee is $6,564.01 representing the amount withdrawn from decedent's account in a Philadelphia bank and forwarded to the claimants a few days prior to decedent's death. That check, however, did not clear before the bank was notified of decedent's death and, therefore, was not honored. A similar check in the amount of $3,307.20 withdrawn from another Philadelphia bank, again prior to decedent's death, did clear before notice of the decedent's death was received. In connection with this amount the accountants claim a set-off against the claimant's distributive share of the estate. The auditing judge sustained appellees' claim and dismissed the executor's set-off claim.

Appellees-claimants asserted that under West German law they had a valid claim against the estate as the document executed by decedent on October 12, 1963, is a "deed of gift" for which specific performance is available under the German Civil Code. At the audit, a qualified expert on West German law testified concerning the code provisions dealing with gifts. During

[ 444 Pa. Page 413]

    his testimony, he translated the pertinent sections of the code as follows: "The so-called paragraph, as we call it, 518 reads: 'A contract through which a consideration is promised as a gift equal to donation is only valid in the form of a notarial or court document.' . . . A notarial form or the court form . . . the law means that a document has to put down the promise of the gift and that document has been made -- not notarized but has been made by a notary public who is a lawyer also in Germany, or has been executed by the court in practice by the clerk of court with the stamp of the court or of the notary. . . . Such a gift promise is in German law a contract, sui generis, a contract of this kind, and as other contracts the paragraph 241 of the German Civil Code is the one according to which such a contract, gift, donation or ...


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