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SHEWCHUK ESTATE (10/12/71)

decided: October 12, 1971.

SHEWCHUK ESTATE


Appeal from decree of Court of Common Pleas, Orphans' Court Division, of Philadelphia, in re estate of John Shewchuk, also known as John Smith, John Shaw and John Schow, deceased.

COUNSEL

James J. Martin, for appellant.

Perrin C. Hamilton, with him Hamilton, Darmopray, Malloy & Milner, for appellee.

Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Roberts.

Author: Roberts

[ 444 Pa. Page 251]

We are confronted in this appeal with legal problems generated by the belated reappearance of a long lost daughter four years after the judicially approved distribution of her deceased father's estate to his brother and two sisters. The principal issues involved concern (1) the power of an orphans' court to review and reopen the distribution of a decedent's estate on the ground of fraud and (2) the sufficiency of evidence of fraud in the instant case. We hold that an orphans' court does have such power and that the findings of fraud are adequately supported by the present record.

The procedural history of this appeal is as follows: John Shewchuk died intestate on February 12, 1962, leaving an estate of approximately $150,000. On February 23, 1962, the Register of Wills of Philadelphia granted letters of administration to the decedent's brother and sister, William Shafter and appellant Dorothy Zerkas.

[ 444 Pa. Page 252]

The administrators' account was called for audit in the Orphans' Court Division of the Philadelphia Court of Common Pleas on April 1, 1963, at which time it was revealed that decedent was survived by another sister living in the Ukraine by the name of Maria Arsak. A question also arose at that time as to whether decedent was also survived by a wife and daughter. Appellant and Shafter submitted a signed affidavit admitting the existence at one time of persons known as Pauline and Mary Rogowska but denying any legal relationship of such persons to the deceased. William Henry, counsel for the estate, filed his own affidavit setting forth his belief that decedent had a wife Pauline and a daughter Mary but that they had not been heard from for almost fifty years.

William Shafter died in January of 1964. John Shewchuk's estate was next listed for audit on March 21, 1964, and again on April 9, 1964. On the latter date various witnesses testified that decedent had in fact been married to a Pauline Rogowska and had a daughter by her named Mary. Herbert Davis, a genealogist hired by William Henry on behalf of the estate to search for Pauline and Mary Rogowska, reported to the auditing judge concerning the advertising efforts which had been taken to locate Pauline and Mary.

The matter was next called for audit on December 14, 1964, at which time Davis testified that it was his expert opinion that there was little likelihood of ever finding decedent's wife or daughter. On December 29, 1964, the auditing judge ruled that the decedent's wife Pauline had forfeited her share of the estate by virtue of willful desertion; that decedent's daughter Mary, having been missing for almost fifty years, was presumed to have predeceased her father leaving no issue; and that the estate was therefore to be awarded in equal shares to appellant, to the executrix of William

[ 444 Pa. Page 253]

Shafter, and to the Secretary of Revenue to be held for Maria Arsak under the so-called Iron Curtain Act.*fn1

The Schedule of Distribution filed pursuant to this ruling was approved by the orphans' court on April 14, 1965, and distribution of the estate's assets was made accordingly. On May 27, 1966, the administrators and their surety, the Fidelity and Deposit Company of Maryland, were formally discharged from further liability on the bonds of the administrators. In June of 1968, the share which had been given to the Commonwealth for the benefit of Maria Arsak was awarded to her attorney-in-fact and was transmitted by him to Maria Arsak.

On June 30, 1969, appellee Mary Voulgaris filed a petition to open and vacate the distribution decrees of 1964 and 1968 on the ground that she was the decedent's daughter and as such entitled to his entire estate. Preliminary objections pertaining to the petition's lack of specificity were sustained and Mary thereafter filed an amended petition. Answers to the amended petition were timely filed, and extensive hearings were conducted in April and May of 1970 before the same auditing judge. On July 8, 1970, it was decreed that Mary Voulgaris was decedent's daughter and that appellant, as surviving administratrix, was liable to recover the assets previously distributed. Exceptions to the decree were dismissed by the court en banc, and this appeal followed.

Appellee's 1969 petition for review alleged that the original decrees of distribution in 1964 and 1968 had

[ 444 Pa. Page 254]

    been procured by the fraudulent misrepresentations of appellant and William Shafter. Appellant contends that even if these allegations be true, a petition for review will not lie once the assets of the estate have actually ...


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