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ESTATE ELNORA J. STEPHENSON. APPEAL RICHARD E. MELOY (10/08/76)

decided: October 8, 1976.

ESTATE OF ELNORA J. STEPHENSON. APPEAL OF RICHARD E. MELOY


COUNSEL

Donald L. Reihart, York, for appellant.

Smith & McCleary, Byron H. LeCates, York, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.

Author: Jones

[ 469 Pa. Page 130]

OPINION OF THE COURT

This troubling estate case not only questions whether the Orphans' Court of York County had jurisdiction to decide the issues in the instant case, but also questions the propriety of the executor's actions in his representation of this estate. The appeal is from the decree of the Orphans' Court of York County dismissing for lack of jurisdiction appellant's petition for citation to show cause why the executor of the estate of Elnora J. Stephenson should not file an account so that it could be surcharged for its alleged failure to collect monies due the estate.

The first account of the executor of the estate of Elnora J. Stephenson was audited and confirmed by the Orphans' Court of York County on October 5, 1955. Although it had been captioned "First and Final," the executor never applied for a formal discharge from its fiduciary duties. At the time of the audit, the estate was found to be insolvent. The appellant is the sole residuary beneficiary under the will and now alleges that the

[ 469 Pa. Page 131]

    executor of the estate of Elnora J. Stephenson should have presented the claim of its testatrix as one of the possible beneficiaries under an alleged intestacy of the estate of Russell H. Bittinger. The appellant alleges that the failure to pursue this claim at the audit of the Bittinger Estate on December 22, 1965, deprived him of a substantial inheritance for which the executor is liable.

Russell H. Bittinger died August 25, 1945, a resident of Dauphin County, Pennsylvania. His will, duly probated there, appointed Charles E. Meckley the executor and provided that his residuary estate was to be held in trust by Charles E. Meckley for the benefit of testator's wife during her lifetime, together with the power to consume corpus subject to certain limitations, and upon her death "the principal and income of said trust estate, or so much thereof as shall remain, shall be paid to my said Trustee free and clear of the trust as his compensation for the management of my trust estate for the protection and benefit of my wife during her lifetime." There was no gift over in the event of the trustee's death or resignation.

Both the testator's wife, Nettie I. Bittinger, and the said Charles E. Meckley survived him. The latter duly filed a first and final account as executor in Dauphin County and administered the trust until his death on June 24, 1951. Following his death, upon petition of the still living widow, Capital Bank and Trust Company was appointed trustee under the will in the place and stead of Charles E. Meckley, deceased. The trust continued to be administered for the widow's benefit until her death on May 20, 1965. Meanwhile, Capital Bank and Trust Company, by merger, became National Bank and Trust Company of Central Pennsylvania.

The intestate heirs at law of Russell H. Bittinger, as of the date of his death in 1945, were his aforementioned widow; a sister, Elnora J. Stephenson; a brother, Frank E. Bittinger; and three children of a deceased brother,

[ 469 Pa. Page 132]

Edward G. Bittinger, namely: Alice Nace, Beulah Yost, and Howard G. Bittinger.

Elnora J. Stephenson, through whom the petitioner claims, had died January 25, 1955, a resident of York County, Pennsylvania. Her will, duly probated in York County, made two small pecuniary bequests and then bequeathed the entire residuary estate unto the petitioner, Richard Meloy, who was not related to the testatrix. Central Trust Company ...


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