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ESTATE JOHN F. R. CLARK (02/01/80)


decided: February 1, 1980.


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.

Author: Roberts

[ 488 Pa. Page 2]


Appellant Charles Catanese, attaching judgment creditor of Patrick Clark, Esq., appeals from final decrees of the

[ 488 Pa. Page 3]

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.

[ 488 Pa. Page 4]

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

[ 488 Pa. Page 5]


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 to require proper determination of both amounts. Cf. e. g., Centrella Estate, 20 D. & C.2d 486, 489 (O.C.Phila.1960) (Klein, P. J.) (attaching creditor of distributee "clearly has the right to compel an accounting").

The estates' arguments in support of a contrary result are unpersuasive. The estates accept the validity of Pennsylvania's long-standing rule which precludes a beneficiary's renunciation of an interest "where that interest has been attached. . . ."*fn4 See e. g., Buckius Estate, 4 Dist.Rep. 775

[ 488 Pa. Page 6]

(O.C.Phila.1895); 2 Hunter's Orphans' Court Commonplace, Executions by Creditors § 6, p. 303 (1959); Fiduciary Review, April, 1955, at p. 3.*fn5 The estates do claim, however, that Patrick Clark released and renounced his interest in the estates pursuant to a "family settlement agreement" which, it is claimed, should be given priority even over the claim of an attaching judgment creditor such as appellant. While it is indisputable that family settlements are favored, see e. g., McCrea Estate, 475 Pa. 383, 380 A.2d 773 (1977); Stancik Estate, 451 Pa. 20, 301 A.2d 612 (1973), the estates cite, and we find, no case which so favors a settlement agreement as to displace an existing attachment execution. Indeed, Fry v. Stetson, 370 Pa. 132, 87 A.2d 305 (1952), the case the estates cite, merely confirms the general rule that absent fraud family settlement agreements entered into before attachment execution have priority. Fry, however, bears upon only the priority of family settlement agreements entered into before attachment and not, as here, after attachment. It cannot support the rule the estates urge this Court to adopt.

The estates further contend that appellant's claim is barred by "laches." The estates complain of appellant's inaction in failing to interpose objection to Patrick Clark's "release and renunciation." The estates ignore the fact that, before Clark attempted to release his shares, appellant had valid, existing attachment executions of record. Indeed, correspondence between the parties demonstrates that appellant refrained from any further action to permit the estates full opportunity to ascertain its losses. And the claimed inaction has in no respect prejudiced the estates. See 2 Standard Pennsylvania Practice § 26 (1956). On this record this contention is wholly without merit.*fn6

[ 488 Pa. Page 7]

Accordingly, we vacate the decrees of the orphans' court and remand for a determination of (1) the amount of the bequest to debtor Clark, and (2) the amount of estate assets Clark improperly withdrew. If the amount Clark improperly withdrew equals or exceeds the amount of his bequest, then there are no estate assets attributable to Clark upon which appellant's attachment executions can operate. If, on the other hand, the amount Clark improperly withdrew is less than his bequest, the excess funds in the hands of the garnishee are properly subject to the attachment executions.

Decrees vacated and case remanded for proceedings consistent with this opinion. Each party pays own costs.

LARSEN, Justice, concurring.

I agree with the result reached by the majority. I cannot, however, subscribe to the majority's analysis which ignores applicable legislative enactments that, it seems to me, are determinative of the issues herein.

[ 488 Pa. Page 8]

Patrick Clark, at a hearing before the Honorable Thomas A. Harper, Criminal Division, Court of Common Pleas of Allegheny County on February 2, 1978, pleaded guilty to one count of theft by unlawful taking of the Clark estates' assets. At this hearing, Clark admitted that he improperly disposed of assets of the estates, the amount of which was unknown. Clark was placed on probation for a period of five years and fined. As part of the terms of the sentence, per the plea negotiations, it was required that Patrick Clark execute releases and renunciations to the executrix of any present or future interests he had in the Clark estates. He was further required to cooperate with the executrix, Yvonne Clark O'Brien, in auditing and settling the accounts of the Clark estates and to pay to the estate $15,000.00 in return for the withdrawal of a civil suit filed against Patrick Clark regarding certain assets. It was also required that he place $5,000.00 in escrow to cover estate tax liability that might be imposed on the estate. Pursuant to the plea bargain, which took into account the family settlement negotiations in this matter, Patrick executed, on February 10, 1978, a document captioned "Release and Renunciation of All Claims", and a document captioned "Release", which documents purported to relinquish any and all interests he might have in the assets of each estate.*fn1 These documents

[ 488 Pa. Page 9]

    were made part of the record in the Orphans' Court proceedings.

On May 19, 1978, a hearing was held on the first and final accounts filed by the executrix in the Clark estates. At the hearing, the attorney for the estate stated for the record "had the [family] settlement not been arrived at, I would have taken exception to the -- both the amounts in the account and the distribution therein. But for the purposes of the settlement, I will not. And I have not filed exceptions thereto."

On March 19, 1976, appellant served a writ of attachment on Yvonne Clark O'Brien (executrix) as garnishee, attempting to attach Patrick Clark's interest in the Clark estates. Appellant filed in Orphans' Court, on May 2, 1978, a "Petition to Enjoin Beneficiary [Patrick Clark] from Renouncing Interest in Estates of John F. R. and Madeline P. Clark." This petition asserted that Clark's February 10, 1978 releases and renunciations were ineffective to cut off appellant's rights as an attaching judgment creditor. The petition was presented at the May 19, 1978 hearing on the first and final accounting and audit, and was denied, and the accounting was approved.

[ 488 Pa. Page 10]

Essentially, the question in this appeal is "what effect does the purported release and/or disclaimer*fn2 of the beneficiary's (Patrick Clark's) interest under the wills prior to the distribution of the estate have upon the rights of a judgment creditor of said beneficiary to attach that interest?" The majority opinion notes "Pennsylvania's long-standing rule which precludes a beneficiary's renunciation of an interest 'where that interest has been attached. . . .' See e. g., Buckius Estate, 4 Dist.Rep. 775 (O.C. Phila. 1895); 2 Hunter's Orphans' Court Commonplace, Executions by Creditors § 6, p. 303; Fiduciary Review, April, 1955, at p. 3." I am not certain that the meager support cited establishes "Pennsylvania's long-standing rule" but, even assuming the validity of that rule, it has been displaced by statute.

The legislature has recently enacted a statute which is controlling in this situation, the Act of July 9, 1976, P.L. 562, No. 136, Ch. 62 (Disclaimers) 20 Pa.C.S. §§ 6201-6207 (Supp. 1979-80). Section 6201 provides, in relevant part:

A person to whom an interest in property would have devolved by whatever means, including a beneficiary under a will . . . may disclaim it in whole or in part by a written disclaimer which shall (1) describe the interest disclaimed, (2) declare the disclaimer and extent thereof, and (3) be signed by the disclaimant.

The right to disclaim shall exist notwithstanding any limitation on the interest in the nature of a spendthrift provision or similar restriction.

Section 6205 describes the effect of such a disclaimer; it provides:

[ 488 Pa. Page 11]

(a) In general. -- A disclaimer relates back for all purposes to the date of the death of the decedent . . . . The disclaimer shall be binding upon the disclaimant and Page 11} all persons claiming through or under him. (emphasis added).

The broad language of this section leads to the inevitable conclusion that a disclaimer will prevent a creditor from reaching a beneficiary's interest under a testamentary gift which has been disclaimed in the manner provided in the statute. The disclaimer relates back for all purposes to the decedent's death and is binding on all persons claiming through the disclaimant. A creditor claims through the debtor/disclaimant and, since the disclaimer relates back to decedent's death, the effect in law is that no interest in the estate has ever passed to the disclaimant which could be attached by a creditor.

This was the effect desired by the drafters of the Disclaimer Act. Chapter 62 was patterned after the Uniform Disclaimer of Property Interests Act, the Uniform Disclaimer of Transfers by Will, Intestacy or Appointment Act and the Uniform Disclaimer of Transfers under Non-testamentary Instruments Act. See § 6201, Official Advisory Committee Comment. The Commissioner's Comment to § 3 of the Uniform Disclaimer of Transfers by Will, Intestacy or Appointment Act makes it clear that the Act applies to creditors of a disclaimer: "[a]s regards creditors . . . the provision for 'relation back' has the legal effect of preventing a succession from becoming operative in favor of the disclaimant. The relation back is 'for all purposes' which would include, among others for the purpose of rights of creditors . . . ."

Thus, a beneficiary is permitted by Chapter 62 to disclaim an interest even though such disclaimer operates to "cut-off" a creditor's attached interest. However, Chapter 62 also provides that a prior acceptance of the interest by the beneficiary will operate as a bar to disclaimer. Section 6206 states:

(a) Acceptance. -- A disclaimer may be made at any time before acceptance. An acceptance may be express or may be inferred from actions of the person entitled to receive an interest in property such as the following:

[ 488 Pa. Page 12]

(1) The taking of possession or accepting delivery of the property or interest.

(3) An assignment conveyance, encumbrance, pledge or other transfer of the interest or a contract to do so.

To constitute a bar to a disclaimer, a prior acceptance must be affirmatively proved. . . .

In the instant case, while the lower court did not specifically deal with this section of the Code, it is evident that Patrick Clark, the beneficiary, had accepted his interest in the Clark estates. There is no dispute that he appropriated the assets of the Clark estates to his own beneficial use and enjoyment -- this was admitted by Patrick Clark in criminal court. I would hold that, even though the beneficiary has no legal right to presently possess or enjoy the assets in an estate, appropriation by the beneficiary of those assets to his own beneficial use and enjoyment constitutes acceptance under § 6206. Accordingly, Patrick Clark's acceptance of his interest in the Clark estates would operate as a bar to an effective disclaimer of that interest.

Having accepted the interest, Clark's "release and renunciation" was, in reality, a form of conveyance -- a transfer of the interest he had already accepted to others who also had interests in the Clark estates. "'Release' is a type of conveyance . . . . As opposed to cases of disclaimer or renunciation, it is assumed in cases of release that the releasor owned something to begin with and that he has released it to somebody else who owned an interest in the same property." Bregy, Intestacy, Wills and Estates Acts of 1947, section 3, para. 5 (Bisel 1949); see Official Advisory Committee Comment to 20 Pa.C.S. § 6201 ("release after acceptance . . . is really a form of conveyance").

A release of an interest in an estate is sanctioned by 20 Pa.C.S. § 6103 (1975). However, this section does not speak to the effect of a release on the rights of a creditor of the releasor. Appellant contends that this conveyance in the form of release was fraudulent as to him.

[ 488 Pa. Page 13]

Appellant admits that his right to receive Patrick Clark's share of the Clark estates is subject to the executrix' right to set off any debt which Clark owes to the estates. Brief for Appellant at 15. However, appellant claims the estates are limited in their set-off to the amount in which Clark was in default. This, according to appellant, requires a determination of two amounts -- the amount of assets in the Clark estates from which Patrick Clark's share could be computed and the amount of assets which were converted by him. Appellant's proposition is that the consideration given by the estate in exchange for the beneficiary's release must be equal to the value of the interest released, else the difference will be subject to attack as a fraudulent conveyance upon creditors of the beneficiary.

The restrictions on a debtor's ability to convey assets to a creditor to the detriment of another creditor are to be found in the Uniform Fraudulent Conveyance Act, 39 P.S. §§ 351-363 (1954) (hereinafter UFCA). Section 351 of the UFCA defines a "conveyance" as including "every payment of money, assignment, release, transfer, lease, mortgage or pledge of tangible or intangible property. . . ." A release of an interest in an estate as heretofore discussed is, therefore, within the ambit of the UFCA and, if fraudulent as defined therein, may be reached by creditors of the conveyor.

Under the UFCA, there are two categories of conveyances which are fraudulent. The first category, section 357, deals with conveyances made with intent to defraud and provides "[e]very conveyance made and every obligation incurred with actual intent, as distinguished from intent presumed in law, to hinder, delay or defraud either present or future creditors, is fraudulent to both present and future creditors". The lower court found no intent to defraud and so held section 357 inapplicable. It is clear that Patrick Clark's release was the result of family negotiations toward settlement and guilty plea negotiations. The release was made a condition of the criminal court's acceptance of the prosecution's recommended sentence, and was the quid pro quo for

[ 488 Pa. Page 14]

    the estates' withdrawal of civil litigation against Clark. Thus, there was adequate evidence supporting the finding that the release was not made with actual intent to defraud appellant.

The second category, section 354, deals with conveyances made by an insolvent; it provides:

Every conveyance made and every obligation incurred by a person who is or will be thereby rendered insolvent, is fraudulent as to creditors, without regard to his actual intent, if the conveyance is made or the obligation is incurred without a fair consideration.

The lower court held this section inapplicable because Patrick Clark "had other assets which he was required to deposit in escrow for the estate, so he did not thereby render himself insolvent." Thus, that court found no fraudulent conveyance under § 354 because the debtor was not rendered insolvent by the release. However, the mere fact that he had such "other assets . . . in escrow" does not establish his solvency as these assets were pledged to the estate as part of the entire transaction which precipitated the release.

Moreover, the court ignored the statutory definition for insolvency.*fn3 Under that definition, Patrick Clark could still be found insolvent even though he had assets in escrow. I would, therefore, vacate the order of the Orphans' Court and remand for an application of the statutory definition of insolvency. Additionally, if the court would determine that Patrick Clark was rendered insolvent by the release, a further determination would have to be made, namely, whether the release was given for fair consideration within the meaning of § 353 of the UFCA. If the court would find that the monetary value of the interest released by Patrick Clark exceeded the monetary value of the set-off due the Clark estates by virtue of Patrick's theft and mismanagement of estate assets, the excess consideration would be

[ 488 Pa. Page 15]

    subject to attack and, to that extent, could be set aside under applicable provisions of the UFCA.

For the foregoing reasons, I would vacate the Orphans' Court decree, and remand for proceedings consistent with this opinion. Each party to pay own costs.

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