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ESTATE WALTER VAUGHN (06/24/83)

filed: June 24, 1983.

IN RE ESTATE OF WALTER VAUGHN, DECEASED. APPEAL OF JACK VAUGHN


No. 339 Harrisburg 1981, APPEAL FROM THE ORDER OF NOVEMBER 3, 1981 IN THE COURT OF COMMON PLEAS OF JUNIATA COUNTY, CIVIL NO. 7512

COUNSEL

R. Heffner, Huntingdon, for appellant.

H. Fry, Mifflintown, for appellee.

Wickersham, Cirillo and Watkins, JJ.

Author: Cirillo

[ 315 Pa. Super. Page 357]

Walter Vaughn, a resident of Juniata County, died intestate on February 22, 1967 survived by his wife, Sadie Vaughn, and nine adult sons and daughters. On June 19, 1967, Letters of Administration were issued by the Register of Wills of Juniata County to Homer Vaughn, one of the decedent's sons. On September 14, 1968, the administrator filed his First and Intended Final Account of the Estate. On October 14, 1968, Sadie Vaughn filed exceptions to the administrator's account for failure to provide a family exemption. However, Sadie Vaughn died before any action was taken on her exceptions. The administrator's account lay dormant for a period of approximately 12 years until May 19, 1980 when appellant Jack Vaughn, another of the decedent's sons, filed exceptions and a petition for the appointment of an auditor. Appellant's exceptions included inter alia, the administrator's failure to include in his account of the estate certain assets of the decedent in his possession, specifically, a 1956 Ford tractor and a Springfield rifle, and the administrator's liability for failure to invest the estate funds during the period his account of the estate was open.

[ 315 Pa. Super. Page 358]

The Orphans' Court of Juniata County appointed an auditor and a hearing was held on July 11, 1980. At that hearing, both the administrator and the appellant testified. The administrator testified that he did not include the tractor and rifle in his account of the estate because his father intended that he have those items after his father's death. The parties stipulated that no income had been earned by the estate since the filing of the administrator's account. The administrator had kept the estate funds in a non-interest bearing checking account. The parties further stipulated that the balance in that checking account had been $4,706.86 since the date of the filing of the administrator's account.*fn1

On November 13, 1980, the auditor filed his report. The auditor found that no valid inter vivos gift of the tractor and rifle had been made by the decedent to the administrator, and the auditor included these assets in the estate. The auditor assessed the value of the tractor and rifle at $1,500.00 and $150.00 respectively. With these assets included, the total estate available for distribution on the date of the filing of the administrator's account was $6,389.70.*fn2 The auditor also found that the administrator had breached his fiduciary duty to invest the estate funds and surcharged him 2% interest. This surcharge amounted to $1,492.56 and brought the total estate on the date of the auditor's report to $7,882.26. The auditor assessed his fee at $1,608.00 and imposed the $2,164.68 total cost of the audit on the estate. Both the appellant and the administrator filed exceptions to the auditor's report. After a hearing, the Orphans' Court

[ 315 Pa. Super. Page 359]

    reduced the auditor's compensation to $1,337.00. All other exceptions were denied, and this appeal followed.

On appeal, appellant raises several claims of error, all relating to the Orphans' Court's assessment and imposition of various fees, costs and surcharges. Preliminarily, we note that the imposition of costs in an Orphans' Court proceeding is a matter left to the sound discretion of that court and will not be disturbed on appeal absent an abuse of discretion. Istocin's Estate, 126 Pa. Super. 158, 190 A. 382 (1937). An abuse of discretion occurs when the court misapplies existing law, makes a manifestly unreasonable judgment, or rules with partiality, prejudice or ill will. M. London, Inc. v. Fedder Corp., 306 Pa. Super. 103, 452 A.2d 236 (1982). It is within this scope of review that we proceed to consider appellant's claims of error.

Appellant first contends that the Orphans' Court erred in refusing to order that his counsel fees be compensated from estate funds. While ordinarily the exceptant to the account of an administrator must pay his own counsel fees, in very exceptional cases the exceptant may be allowed counsel fees out of estate funds. In re Estate of Lux, 480 Pa. 256, 389 A.2d 1053 (1978). Where the estate is substantially benefitted by the efforts of an exceptant's counsel, which have resulted in an administrator being required to include in his inventory of the estate valuable assets previously not included, it is within the discretion of the court to compensate the exceptant's counsel fees out of estate funds. Id. In the instant case, the Orphans' Court ...


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