No. 297 January Term, 1977 Appeal from Decree of the Court of Common Pleas, Orphans' Court Division, of Montgomery County, at No. 74716
Donald B. McCoy, Langhorne, for appellant.
Michael H. Egnal, Philadelphia, Rosemary M. Flannery, Norristown, Peter J. Verderame, Langhorne, Anthony L. Differ, Norristown, J. Russell Gibbons, Philadelphia, for appellees.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen and Flaherty, JJ. Nix and Manderino, JJ., did not participate in the decision of this case. Eagen, C. J., concurs in the result. Roberts, J., files a dissenting opinion.
This is an appeal from a decree entered in the Court of Common Pleas of Montgomery County, Orphans' Court Division,
denying appellants' exceptions to the accounting judge's decree nisi in the estate of James Allen.
Decedent, James Allen, died testate on December 25, 1972, survived by his widow Ruth B. Allen and by three sons: Robert M. Allen and William B. Allen, appellants herein, and James Allen, Jr.
Decedent left a will, dated September 29, 1972, which, with the exception of certain specific legacies not here in controversy, disposed of his property as follows:
"FOURTH: I bequeath to my son, JAMES ALLEN, JR., the good will of my real estate business known as "Allen Brothers" . . ., along with the name, the stock in trade, fixtures, goods and effects belonging thereto and the benefit of all contracts subsisting in respect to said business, and all book debts and the Allen Brothers bank accounts except monies due me at the time of my decease and not drawn, upon his paying all debts, demands and liabilities due, or owing from or by me, in or in respect of said business. . . .
"FIFTH: Since the year 1968 I have made sundry and various transactions whereby James Allen, Jr. has received certain moneys and other property a record of which will be found among my books and records. So that all of my heirs and under my residuary clause shall receive equal shares, I direct that such advancements shall be taken into account and be deducted from his share of the residuary estate.
"SIXTH: All of the rest, residue and remainder of my estate, real personal or mixed, whatsoever kind and wheresoever situate of which I may die seized or possessed, or to which I may be entitled at my death, I give, devise and bequeath as follows:
"a. One-third thereof to my wife, RUTH B. ALLEN . . . providing she survives me.
"b. The remainder thereof in equal one-third shares, to my Sons, JAMES ALLEN, JR., WILLIAM B. ALLEN and
ROBERT M. ALLEN, per stirpes and not per capita, their heirs and assigns forever."
Named as executors were decedent's three sons.
On December 26, 1972, James Allen, Jr. filed a caveat to the will alleging lack of testamentary capacity and the exercise of undue influence upon testator by William B. Allen. A hearing was scheduled on said caveat, but in the event, an agreement was reached among the parties which was reflected in an order of court entered October 2, 1973, and which provided that the will be probated all save Paragraph FIFTH thereof and that testator's three sons be granted letters testamentary and proceed with the administration of the estate.
The three co-executors were, however, incapable of proceeding in this, their father's final charge to them, and after numerous delays and conferences, the Orphans' Court determined the administration of the estate could be facilitated, and a number of claims against the estate satisfied, only by the appointment of an auditor to state an account. An auditor was thus appointed on September 26, 1974; his account was filed on December 31, 1974, and came on for audit before the Orphans' Court on February 3, 1975. At that time numerous objections to the account were filed by the three co-executors, which came on for hearing on June 18 and 19, 1975. Also at that time a claim was filed against the estate in the amount of $857.68 for legal services provided testator during his lifetime. That claim was heard by the Orphans' Court on December 8, 1975, and ultimately approved and awarded.
The Orphans' Court issued and confirmed nisi its adjudication on September 23, 1976. Exceptions to the decree nisi were filed by appellants on October 4, 1976.*fn1 On December 29, 1976, argument was held before the Orphans' Court on appellants' exceptions, and on January 14, 1977, the court en
banc entered a final decree dismissing the exceptions. From that decree the instant appeal was taken.*fn2
Appellants advance nine assertions of error; we address these claims seriatim.
Initially, appellants urge upon us that the Orphans' Court erred in awarding a claim against the estate in the amount of $857.68 for legal services performed for testator during his lifetime.
We begin by noting that "a claim against a decedent's estate can be established and proved only by evidence which is clear, direct, precise and convincing." Petro v. Secary Estate, 403 Pa. 540, 543, 170 A.2d 325, 327 (1961). Accord: Carr Estate, 436 Pa. 47, 258 A.2d 628 (1969). It is also true, as appellants argue, that the burden of proof lies upon the claimant. Kenna Estate, 348 Pa. 214, 34 A.2d 617 (1943).
It is also true, however, that the findings of fact by the chancellor "have the weight and effect of a jury verdict and must be accepted at the appellate level unless such findings lack evidentiary support or unless the chancellor has capriciously disbelieved evidence or abused his discretion or committed an error of law." Smith Estate, 454 Pa. 534, 314 A.2d 21 (1974). Moreover, the record will be reviewed in the light most favorable to the appellee. Ziel Estate, 467 Pa. 531, 359 A.2d 728 (1976).
Instantly, the claimant introduced into evidence time sheets, properly authenticated and admissable under the Uniform Business Records as Evidence Act.*fn3 The record indicates that the time sheets so introduced reflected the performance of legal services on behalf of decedent for a period of over seven years prior to his death, forty-one and one-half hours of such services for which claimant had not been compensated. Appellant William B. Allen contested ...