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ESTATE MIKE TOSE (03/23/78)

decided: March 23, 1978.

ESTATE OF MIKE TOSE, DECEASED. APPEAL OF ANDREA TOSE


No. 54 January Term, 1975, Appeal From the Decree of April 23, 1974 of the Orphans' Court Division of the Court of Common Pleas of Montgomery County at No. 72554.

COUNSEL

Harold E. Kohn, Bayard M. Graf, Philadelphia, for appellant.

Desmond J. McTighe, Norristown, for appellees, Leonard H. Tose and Desmond J. McTighe, Executors of Est. of Mike Tose, Dec'd.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, former C. J., did not participate in the decision of this case.

Author: Nix

[ 482 Pa. Page 215]

OPINION

Appellant, Andrea Tose, one of the 11 pecuniary legatees under the will of her father-in-law, Mike Tose, deceased, now appeals from a decree of the Orphans' Court Division of the Court of Common Pleas of Montgomery County entered August 23, 1974. The testator died on October 23, 1965, leaving a will under the terms of which he bequeathed One Hundred Sixty Thousand Dollars ($160,000) among 11 pecuniary legatees in varying amounts.*fn1 In addition, the testator specifically bequeathed his stock to his son, Leonard H. Tose. Leonard was named as co-executor along with Desmond J. McTighe, Esquire.

The first and final account filed by the executors on July 29, 1971, showed that all available assets other than the stock, which was the subject of testator's specific bequest, had been used to pay the Federal Estate and Pennsylvania Inheritance Taxes and other fees and expenses. Leonard Tose contributed Fifty Thousand Eight Hundred Thirty-four Dollars and Sixty-five Cents ($50,834.65) toward the payment of the Federal Estate taxes and the stock had been distributed to Leonard leaving nothing available for distribution to the pecuniary legatees. Andrea Tose, one of the pecuniary legatees, filed objections and supplemental objections to the account alleging that the State and Federal death taxes attributed to Leonard's specific legacy, the stock, should have been apportioned to it and paid by Leonard. She also contended that certain administrative expenses should have been similarly apportioned. The Auditing Judge in his adjudication of March 22, 1972, sustained the position of Ms. Tose with reference to the apportionment of the death taxes attributed to Leonard's specific bequest and thereby made available a fund of Thirty-eight Thousand One Hundred Sixty Dollars and Twenty-six Cents ($38,160.26) for the partial satisfaction of the 11 pecuniary legacies. Exceptions were filed by the executors to the direction

[ 482 Pa. Page 216]

    to apportion and by Andrea Tose to the allowance of the executors' commission and the failure to direct the apportionment of certain administrative expenses. Both sets of exceptions were dismissed on January 26, 1973.*fn2

The executors then filed a schedule of distribution as directed in the adjudication to which Andrea Tose filed objections. An Opinion Sur Objections to a Schedule of Distribution was filed on April 23, 1974, and thereafter exceptions were filed by Andrea Tose. On August 23, 1974, a final decree was entered dismissing the exceptions to the schedule and it is from that decree that this appeal has been taken.

Appellant has raised three arguments. First, it is contended that interest should be paid at a rate of three per cent (3%) per annum on the pecuniary legacies commencing one year from the date of the decedent's death. It is argued that this result is required by the Probate, Estates and Fiduciary Code. Act of June 30, 1972, P.L. 508, No. 164, § 2, 20 Pa.C.S.A. § 3543(a) (1975).*fn3 Secondly, appellant contends that the interest paid on the delinquent estate and inheritance taxes should not have been apportioned to the pecuniary legacies. Specifically, it is argued that the account of the executors shows that they paid interest on the tax liability in the amount of Nine Thousand Eight Hundred

[ 482 Pa. Page 217]

Eighty-one Dollars and Thirty-one Cents ($9,881.31) which was taken into account in charging the pecuniary legatees. It is asserted that the delay in payment of these tax obligations arose because of a dispute as to the value of the stock, which was the subject of the specific bequest, and therefore the pecuniary legatees should not have been held responsible for the interest that accrued. Thirdly, appellant charges that her counsel should have been paid out of the fund "created" for the benefit of all of the pecuniary legatees.

Appellee initially responded to the instant contentions by asserting that these claims should be dismissed because they were not raised in accordance with the rules of court. We find this argument persuasive only as to appellant's second claim. Rule 10, Section 6 of the Supreme Court Orphans' Court Rules, ...


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