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NUNNAMAKER ESTATE (07/02/73)

decided: July 2, 1973.

NUNNAMAKER ESTATE


Appeal from order of Court of Common Pleas, Orphans' Court Division, of Montgomery County, No. 72-655, in re estate of Catherine E. Nunnamaker.

COUNSEL

Harry R. Nixon, with him Robert M. John, and Schneider, Nixon & John, for appellant.

Robert K. Duffy, with him Duffy, North, Duffy and Wilson, for appellee.

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

Author: Roberts

[ 452 Pa. Page 468]

On December 20, 1970, Catherine E. Nunnamaker died leaving a will dated July 11, 1947, in which W. Franklin Nunnamaker, her husband and appellee here, was named as executor and sole beneficiary. Several months prior to decedent's death she and her husband had become estranged. The record shows that decedent and her husband had been owners of several savings accounts and a safe deposit box, all of which were titled in their joint names and held as tenants by the entirety. During October of 1970, the husband withdrew all of the assets from these accounts and the safe deposit box and transferred them to other accounts in his name alone, without the knowledge or consent of his wife.

In December, 1970, shortly before his wife's death, the husband separated from his wife and instituted an action for divorce in the Court of Common Pleas of Montgomery County. To protect her interests during this period, the decedent retained the services of appellant, A. Groh Schneider, as an attorney. Prior to Mrs. Nunnamaker's death, appellant and Mr. Nunnamaker's attorneys had been engaged in negotiating a property settlement. However, before any agreement could be reached Mrs. Nunnamaker died.

Decedent's will was admitted to probate in the Orphans' Court Division of the Montgomery County Court of Common Pleas on December 28, 1971, and letters testamentary were granted to appellee. He filed the inventory on January 24, 1972, and listed only four items of tangible personal property with a total value of $900.00. On February 17, 1972, appellant, claiming to be a creditor of the wife's estate for legal services rendered prior to her death, filed objections to the inventory. Appellant claimed that the husband-executor had failed to include in the inventory his wife's interests in the various savings accounts and other stocks and bonds, held by the entirety, which appellee had removed

[ 452 Pa. Page 469]

    from the joint accounts and the joint safe deposit box during decedent's lifetime.

A hearing was held on these objections before the orphans' court division and on December 6, 1972, the court entered a decree dismissing appellant's objections. Appellant then appealed. We now quash the appeal and remand to the orphans' court division.

Appellant argues that appellee's actions converting the entireties assets to his own account without the consent of his co-tenant constituted a "fictional" offer to terminate the tenancy by the entirety. He further contends that decedent's actions subsequent to the complaint in divorce filed by her husband constituted an acceptance of that "fictional" offer and thereby terminated all aspects of the tenancy by the entirety, entitling each party to half the assets of the tenancy. In these circumstances, argues appellant, the appellee holds one-half of the entireties property as a constructive trustee for the benefit of his spouse's estate.

At this stage of the proceedings we need not resolve appellant's claim because the dismissal of appellant's objections to the inventory is not a final decree determining ownership of property, and hence is not appealable. See Donsavage Estate, 420 Pa. 587, 590-91 n.3, 218 A.2d 112, 116 n.3 (1966); cf. Gramm Estate, 420 ...


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