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decided: July 14, 1978.


No. 152 March Term 1977, Appeal from the Decree of the Court of Common Pleas, Orphans' Court Division, Allegheny County, at No. 5540 of 1975 in equity.


Norman M. Bartko, Duquesne, for June Alice Maholage.

Ronald M. Buick, McKeesport, for June Alice Maholage, individually.

Jeffrey J. Leech, Pittsburgh, for Marilyn Gannon.

Morris M. Berger, Berger, Kapetan & Malakof, Pittsburgh, for Gertrude M. Lux.

C. W. Berger, Pittsburgh, for appellee.

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

Author: Eagen

[ 480 Pa. Page 260]


Margaret E. Lux died on December 7, 1975. On December 20, 1975, a holographic will dated July 12, 1975, was admitted to probate at the instance of June Alice Maholage (appellant), a daughter of the decedent. The will, after providing for debts and funeral expenses, directed that the remainder of the estate be divided equally among the decedent's three daughters, June Alice Maholage, Marilyn Margaret Gannon, and Gertrude Lux, and named June Alice Maholage executrix. Letters testamentary were issued to June Alice Maholage as executrix.

On March 4, 1976, the executrix filed an inventory listing estate assets in the amount of $27,734.93. Subsequently, on April 20, 1976, Marilyn Gannon and Gertrude Lux (appellees) filed a petition in the Orphans' Court Division of the Court of Common Pleas of Allegheny County seeking the removal of the executrix. The petition alleged inter alia that "wasteful mismanagement" by the executrix was jeopardizing the interests of the estate; that the executrix had failed to report all known assets of the estate, specifically at least $1306 in cash removed from the decedent's residence shortly after her death; that the executrix's personal interests were in conflict with that of the estate in that she claimed she was the sole owner of a savings account which had been in the joint names of herself and the decedent and which petitioners contended was part of the estate; and that the "actions and inactions of the executrix [had] generated unfriendly and antagonistic feelings between herself and petitioners." The executrix filed an answer disputing these allegations and raising as new matter the allegation that Marilyn Gannon and Gertrude Lux had conspired to fraudulently destroy a more recent will of the decedent which did not include Gertrude Lux as a beneficiary.

After an evidentiary hearing on this petition but before a decision was rendered, the petitioners sought and received permission to amend their petition to one seeking, in addition

[ 480 Pa. Page 261]

    to removal of the executrix, that she file an account including as estate assets $1306 in cash, additional personalty including a fur coat, and the funds formerly contained in the disputed joint account, and that "petitioners' reasonable attorney's fees be paid from the assets of the estate." On August 17, 1976, the court entered a decree denying the petition for removal of the executrix but requiring her to file a supplemental inventory including $1306 in cash and other personalty as well as $10,508.95, the proceeds of the disputed joint account; the request by the executrix for probate of the alleged later will was denied.*fn1 Both sides filed exceptions to this decree, but all parties stipulated that the adjudication of these exceptions should be deferred until audit of the account.

On October 1, 1976, the executrix filed her first and final account, which included a supplemental inventory filed "subject to the preservation of exception rights." Both sides filed objections to the account. After a further evidentiary hearing, the court on January 3, 1977, entered a decree of distribution which required the executrix to include interest on both the cash and the joint account, to have appraised and to include in another supplemental inventory certain watches and jewelry omitted from the account; and to change the inventory value of a cast iron bank from $1 to $125; this decree also awarded $1500 in counsel fees to the attorney for Marilyn Gannon and Gertrude Lux. When Mrs. Maholage filed two sets of exceptions to that decree, one as executrix and one in her own person, the court in a January 19, 1977, decree removed her as executrix. Exceptions to both the January 3 and the January 19 decrees were dismissed by the court en banc on April 12, 1977. From this final decree Mrs. Maholage here appeals both in her own person and in her capacity as executrix.*fn2 Personally appellant

[ 480 Pa. Page 262]

    argues the court erred in decreeing that the proceeds of the joint bank account belonged to the estate; as executrix she argues the court erred in decreeing that she be removed as executrix, that the attorney for her sisters be awarded counsel fees from the estate, and that she be required to account for $1306 in cash.*fn3


As to this issue, Gertrude Lux, who resided with the decedent, testified that her mother customarily kept large amounts of cash in her apartment. She testified that on the evening of her mother's death her sister June and June's husband and brother-in-law, Joe and Frank Maholage, arrived at the apartment and removed the decedent's cash and jewelry from her bedroom, that the men counted out the cash at the kitchen table, that Frank told Gertrude the cash and jewelry should be removed from the apartment for safekeeping, that he wrote out and gave her a receipt for $1306, and that the Maholages took the cash and jewelry away with them. She further testified that June later advised her not to report this cash to her welfare caseworker but that she did so, and that June also suggested to her that by not listing the cash on the inventory they could ...

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