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decided: July 2, 1973.


Appeal from decree of Court of Common Pleas, Orphans' Court Division, of Berks County, No. 67081, in re Estate of Laura H. Heidtman.


Peirce A. Hammond, Jr., with him Harris, Hammond and Harris, for appellants.

George R. Eves, for appellee.

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

Author: Jones

[ 452 Pa. Page 442]

This appeal raises two issues: (1) does a husband, by virtue of the marital relation to his incompetent spouse, possess such an adverse interest in her property that he must be precluded from appointment as guardian of her estate? (2) if, as a matter of law, there is no adverse interest by reason of the husband-wife relation

[ 452 Pa. Page 443]

    alone, did the evidence presented in the court below justify a finding of adverse interest in fact?

The question of the necessity of a guardian for Laura H. Heidtman's estate is not in issue: her incompetence was conclusively established by medical testimony in the proceedings below and is not disputed by the appellants. The only question before us is whether the lower court properly appointed the incompetent's husband to serve as guardian.*fn1

Laura Heidtman was admitted to the Reading Hospital on March 30, 1972. She was examined there by Dr. Elmer Horst, who found her "acutely disturbed and very paranoid." Laura Heidtman's husband, Walter Heidtman, petitioned the court for an adjudication of incompetence. He also requested that he be appointed as guardian of Laura Heidtman's estate. After a hearing on May 5, 1972, the court issued its June 7, 1972, decree of incompetence and appointed Walter Heidtman as guardian of the estate.

On June 22, 1972, Estelle Gray, Florence Hirst and George Harnly, siblings of the incompetent, filed exceptions to the lower court's exclusion of offered evidence, its appointment of Walter Heidtman as guardian and the failure to appoint a "disinterested" guardian. On October 16, 1972, the court issued a decree sustaining these exceptions for the limited purpose of determining the admissibility of the excluded evidence and to judge whether such evidence, if admitted, could establish circumstances which would warrant a denial of the appointment of the incompetent's husband as guardian.

A second hearing was held on November 10, 1972. On December 4, 1972, the court issued a final decree in

[ 452 Pa. Page 444]

    which it dismissed the exceptions and "confirmed absolutely" the appointment of Walter Heidtman as guardian. Estelle Gray and Florence Hirst have taken this appeal from the court's decree.*fn2

The Rules of the Orphans' Court, Section 14, Rule 142(a)(8), provide that "[a] petition to adjudicate a person incompetent and to appoint a guardian of his estate shall set forth . . . an averment that the proposed guardian has no interest adverse to the alleged incompetent."*fn3 From this basic rule the appellants would have us extrapolate a corollary that a husband cannot be appointed guardian of the estate of his incompetent wife. The appellants cite legislation affording married women property and contractual rights (Act of July 15, 1957, P. L. 969, § 1, 48 P.S. § 32.1), the right to control separate earnings (Act of April 3, 1872, P. L. 35, §§ 1, 2, 48 P.S. §§ 34, 35), the right of a married woman to control property upon the husband's desertion (Act of May 4, 1855, P. L. 430, §§ 2, 4, 48 P.S. §§ 42, 43) and the right of a married woman to be free from liability for her husband's debts (Act of April 11, 1848, P. L. 536, § 6, 48 P.S. § 64). Appellants maintain that in view of legislation establishing the independence of a competent married woman from her husband's proprietary control it would be anomalous to permit an incompetent woman to be "victimized" by her husband. On the strength of this argument alone, we are urged to promulgate a rule which would raise a presumption of adverse interest in the husband seeking appointment as

[ 452 Pa. Page 445]

    guardian of his wife's estate, a presumption based solely upon his marital relation to the incompetent wife. The effect would be novel, but untenable: the husband would bear the burden of coming forward with evidence that his wish to serve as guardian of the incompetent wife's estate is uncompromised by the opportunity for personal gain. We believe that the court below has properly placed the burden of proof of adverse interest with those who have challenged the husband's petition for appointment as guardian.

Appellants argue, alternatively, that on the evidence presented the court should not have appointed the appellee as guardian of his wife's estate because adverse interest is factually indicated. When a decree of incompetence is entered the incompetent is made a ward of the court appointing the guardian, and his estate is in the custody of that court. "Necessarily, therefore, the appointment of guardians for the incompetent . . . is within the sound discretion of the court to which the application has been made; and [the appellate] court will not reverse unless there has been an abuse of discretion." Voshake's Estate, 125 Pa. Superior Ct. 98, 101, 189 A. 753, 755 (1937); see Coulter Estate, 406 Pa. 402, 412, 178 A.2d 742, 747 (1962); Arthur's Case, 136 Pa. Superior Ct. 261, 264, 7 A.2d 55, 57 (1939). A thorough examination of the record reveals no abuse of discretion by the lower court in this case.

Walter and Laura Heidtman have been married for forty-eight years. They are the owners of real estate as tenants by the entirety. Mrs. Heidtman owns separate assets in the form of stocks, bonds and other personalty. Walter Heidtman has owned and operated his own business for forty-two years. He is experienced in handling investments and securities and believes that he is capable of managing his wife's assets.

[ 452 Pa. Page 446]

With the intent to prove Walter Heidtman's adverse interest, the appellants offered extracts of a book belonging to Laura Heidtman which contains memoranda of personal business transactions, some involving her husband.*fn4 These notations, in themselves, evidence neither negligence nor intentional misconduct by Walter Heidtman. Nor do Mrs. Heidtman's writings alone support a charge of overreaching by her husband in the management of their jointly held property. Upon this record, there is insufficient evidence of adverse interest to justify a finding of an abuse of discretion by the court below.

Decree affirmed. Appellants to pay costs.


Decree affirmed.

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