No. 62 W.D. Appeal Docket 1983, Appeal from Superior Court Per Curiam Order in No. 537 Pittsburgh 1981, entered on October 8, 1982, affirming the Order of the Court of Common Pleas of Allegheny County, Orphans' Court Division, at No. 464 of 1979, 302 Pa. Superior Ct. 554, 453 A.2d 22 (1982)
Peter Suwak, Washington, for appellant.
Jerry B. Landis, Pittsburgh, for Eutimo R. Vitullo, Executor.
Kenneth Lewis, Baskin & Sears, Pittsburgh, for heirs of the estate.
Papadakos, Justice. Flaherty and Hutchinson, JJ., join in this opinion. Zappala, J., concurs in the result. Larsen, J., files a concurring and dissenting opinion in which Nix, C.j., joins. McDermott, J., joins in the dissenting portion of the concurring and dissenting opinion of Larsen, J. McDermott, J., files a dissenting opinion.
Opinion ANNOUNCING JUDGMENT OF THE COURT
This is the appeal of Lawrence F. Hitchon (Appellant) from the per curiam order of the Superior Court, In re: Estate of Schofield, etc., 306 Pa. Superior Ct. 584, 453 A.2d 22 (1982), affirming an Order of the Court of Common Pleas of Allegheny County, Orphans' Court Division, entered on December 3, 1980, by the Honorable Nathan Schwartz. That order dismissed objections of Appellant to the First and Final Account of Eutimio R. Vitillo, Executor of the Estate of A. Carolyn Schofield, deceased (decedent).
Decedent died testate on January 2, 1979, and by her Last Will and Testament executed on March 22, 1969, devised to her nephew (Appellant) her one-half interest in and to certain real property in New Stanton, Hempfield Township, Westmoreland County. Her residuary estate, after other pre-residuary gifts, passed in equal shares to Appellant and ten other residuary legatees. A codicil dated October, 1970, reaffirmed these gifts. The record reveals that at decedent's death she did not own the New Stanton property, having conveyed her interest on July 28, 1976 to Antonio and Rose Josephine Pagano. At decedent's death, it was discovered that her share of the proceeds of the sale (approximately $127,000.00) had been commingled with other funds and was in her husband's (Harry L. Schofield) possession. The executor instituted an Equity action against the husband, alleging that he misappropriated the sale proceeds for his own use. The Executor ultimately recovered the full amount claimed, less attorney fees, and included this net recovery of $99,500.00 in his Petition for Distribution,
recommending that it be distributed among the eleven residuary legatees.
At audit, Appellant filed objections to the Petition for Distribution, claiming the balance of the sale proceeds as his own. The Executor argued that since Appellant's specific devise was sold prior to decedent's death, the gift was adeemed. The trial court agreed with the Executor and dismissed the objections by its order of December 3, 1980. Exceptions to that order were dismissed by a Court en banc and Superior Court affirmed. This appeal followed.
Before us, Appellant advances the same arguments presented to the trial court and Superior Court in support of his claims over the sale proceeds. Appellant first argues that he can reach the balance of the recovered proceeds pursuant to 20 Pa.C.S. Section 2514(16.1). That section provides as follows:
If property of an incompetent specifically devised or bequeathed is sold or exchanged or if a condemnation award or insurance proceeds are paid to the Estate of an incompetent as a result of condemnation, fire or casualty, the specific legatee or devisee has the right to the net sale price, the property received in exchange, the condemnation award or the insurance proceeds. This paragraph does not apply if subsequent to the sale, exchange, condemnation or casualty, the Testator has been adjudicated competent and survives the adjudication by one year.
Appellant argues that this Section covers all situations where an incompetent testator's property is sold, irrespective of whether or not the testator was judicially adjudged to be incompetent prior to his death. Furthermore, Appellant argues that this Section would permit him to introduce evidence in a post-mortem proceeding to establish the decedent's incompetence at the time of the sale. Appellant bases these arguments on a comparison of the current 20 Pa.C.S. Section 2514(16.1) with former 20 Pa.C.S. Section 2514(16) which provided prior to July 9, 1976 as follows:
Ademption. A specific devise or bequest shall not be adeemed where the Testator or the Testator's Estate receives an asset in exchange for the subject of the devise or bequest and the act which otherwise would have caused the ademption occurs while the Testator is an adjudged incompetent. In such case the devise or bequest shall be deemed to apply to whatever was received in exchange.
Appellant places great emphasis upon new Section 2514(16.1), wherein the Legislature substituted "adjudged incompetent" for "incompetent," and suggests that the deletion of the single word "adjudged" is of particular significance. We disagree.
Section 2514(16.1) is derived from the Uniform Probate Code, Section 2-608, Nov. 2-608(b)*fn1 which contains the following language:
If specifically devised property is sold by conservator or if a condemnation award or insurance proceeds are paid to a conservator as a result of condemnation, fire or casualty, the specific devisee has the right to a general pecuniary devise equal to the net sale price, the condemnation award, or the insurance proceeds. This subsection does not apply if after the sale, condemnation or casualty, it is adjudged that the disability of the Testator has ceased and the Testator survives the adjudication by one year . . .
Our comparison of the Uniform Probate Code and Section 2514(16.1) leads us to conclude that our statute provides for exactly the same elements as does the Uniform Probate Code with only one difference. The Uniform Probate Code language refers to a "conservator," the use of which clearly implies that a formal adjudication of incompetency has occurred prior to death. Although our Section 2514(16.1) does not refer to "guardians" or "conservators," it concludes with the sentence "this paragraph does not apply if subsequent to the sale, exchange, condemnation, or casualty, the Testator has been adjudicated competent and survives
the adjudication by one year." Since only an adjudged incompetent can be subsequently adjudged competent, it is clear that the legislative intent was not to change the former provision of 2514(16) and thus create a new proceeding in which the Court would be compelled to make an adjudication of competency or incompetency after the death of the Testator. Our reading of this Section as a whole convinces us that its scope encompasses only formal pre-death adjudications of incompetency.
Both Sections as their chief purpose seek to soften the inflexible rule of ademption where specific devises are destroyed during periods of the testator's officially declared incompetency. In furtherance of that end, both sections establish a rule avoiding ademption where specific devises are destroyed by sale, condemnation, or act of God at a time when the affairs of the testator are formally in the hands of a court appointed guardian. Each section specifically provides for its inapplicability where an adjudication of competency is made and the testator survives for a one year period.
The comments to Section 2514(16.1) do not mention any radical difference in our Section from the Uniform Probate Code Section; to the contrary, they are indicative of legislative intent to adopt in total the construction as framed by the drafters of the Uniform Probate Code.
The trial court, in a well reasoned opinion, was also of this view and further observed that our Probate Code makes no distinction between incompetents and adjudicated incompetents, (See Sections 5505, 5512, 5522, 5524, and 5525), nor does it anticipate post-mortem adjudications of incompetency. (See Sections 5511(a), (c)). All of these sections indicate a consistent use of "incompetent" in our Probate Code which carries over into Section 2514(16.1).
It is our view that the Legislature, by this section, intended to ameliorate the inflexibility of the ademption rule only in situations of pre-death judicial adjudications of incompetence and not in situations where no pre-death ...