Nos. 13 & 14 March Term, 1979, Appeals from the Decrees of the Orphans' Court Division of the Court of Common Pleas of Allegheny County at Nos. 3410 and 3411 of 1973.
Keith H. West, Jerry F. Palmer, Thorp, Reed & Armstrong, Pittsburgh, for appellant.
Thomas Levendos, Pittsburgh, for Yvonne O'Brien.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen and Flaherty, JJ. Manderino, J., did not participate in the decision of this case. Larsen, J., filed a concurring opinion in which Flaherty, J., joins.
Appellant Charles Catanese, attaching judgment creditor of Patrick Clark, Esq., appeals from final decrees of the
Orphans' Court Division of the Court of Common Pleas of Allegheny County. The orphans' court rejected appellant's challenge to debtor Clark's "release and renunciation" of the full, unknown amount of his distributable share of the estates of his deceased parents, John Clark and Madeline Clark. Clark had "released and renounced" his interest in exchange for settlement of his obligation to repay an equally unknown amount of estate funds he misappropriated while executor of the estates. Although the orphans' court denied appellant relief on the ground that Clark "is generally in default in the two estates in a greater amount than his share in both estates," and thus nothing remains for attachment, we agree with appellant that the record contains insufficient evidence to support the conclusion of the orphans' court. Accordingly, we vacate the decrees and remand with instructions.
John Clark died on June 25, 1973. His wife, Madeline Clark, died two weeks later. Both left wills giving each of their children an equal share of their respective estates. They also named their oldest child Patrick Clark, an accountant and attorney, as executor. Clark received letters testamentary in August of 1973. By November of 1975, the orphans' court removed him as executor for mismanagement of the estates and misappropriation of estate assets. The court substituted another child, Yvonne Clark O'Brien, as executrix.*fn1
In the meantime, in August of 1973, appellant had obtained a default judgment against Clark for Clark's alleged malpractice while providing appellant representation. After a hearing on damages, the Civil Division of the Court of Common Pleas of Allegheny County returned a verdict of $119,066 in appellant's favor. In August of 1974, appellant reduced his verdict to judgment.
For some nineteen months appellant unsuccessfully sought to satisfy the judgment. Appellant then attempted to execute upon debtor Clark's interest in his deceased parents' estates. On March 17, 1976, on appellant's praecipe, the Prothonotary of Allegheny County issued writs of execution against Yvonne Clark O'Brien, the estates' executrix, as garnishee. Two days later, the Sheriff served the executrix with the writs. At that time, the estates were "in total havoc and disarray."*fn2 Although interrogatories were also served, the parties agreed to postpone filing of answers.
After appellant had attached Clark's distributable share, Clark, the executrix, and other beneficiaries entered into negotiations to settle Clark's obligation to the estates. As a result of the negotiations, in February of 1978, Clark executed a "release and renunciation" of whatever distributable share of the estates he might have received. Thereafter, appellant filed a claim with the estates based on his attachment executions two years earlier. In May of 1978, at audit, appellant filed a "petition to enjoin" Clark's release and renunciation insofar as it affected his existing attachment executions. The orphans' court denied relief and these appeals followed.*fn3
Appellant maintains, as he maintained in the orphans' court, that his existing attachment executions could not be divested by debtor Clark's later release and renunciation. All that appellant seeks, however, is to have his attachment executions operate on Clark's share to the extent the share exceeds the amount Clark owes the estates. (Indeed, appellant concedes the estates' claims on Clark's share take priority over his. See e. g., Strong's Executors v. Bass, supra note 3.) Appellant contends that the facts necessary to calculate whether an attachable share exists have not been determined.
"It is hornbook law that findings by a court must be based on proved facts or inferences therefrom . . . and possess some evidentiary support." Hosfeld Estate, 412 Pa. 156, 162, 194 A.2d 158, 161 (1963). The finding of the orphans' court here, that Clark "generally" is in default in an amount greater than the amount which he would receive, lacks the necessary evidentiary support. This determination can be made only if two amounts first have been established: (1) the amount of the bequest to Patrick Clark, and (2) the amount of estate assets Clark improperly withdrew. Neither amount, however, has been determined, for there has been no accurate inventory of either estate filed, and the present executrix has not established the amount by which Patrick Clark should be surcharged. As an attaching judgment creditor, appellant must be permitted ...