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ESTATE EILEEN WALLS CECCHINE. APPEAL JOHN CECCHINE (11/30/84)

filed: November 30, 1984.

IN RE ESTATE OF EILEEN WALLS CECCHINE. APPEAL OF JOHN CECCHINE, FATHER AND NATURAL GUARDIAN OF MICHAEL CECCHINE, RICHARD CECCHINE, CHRISTOPHER CECCHINE AND JOHN CECCHINE, MINORS


No. 1112 Philadelphia, 1983, Appeal from Judgment of the Court of Common Pleas, Orphans' Court Division, of Delaware County, No. 249-82.

COUNSEL

Richard H. Anderson, Media, for appellant.

Michael G. Cullen, Drexel Hill, for participating party.

Wickersham, Wieand and Lipez, JJ.

Author: Wieand

[ 336 Pa. Super. Page 114]

This is an appeal from a decree of the Orphans' Court Division in Delaware County which allowed a claim against a decedent's estate for legal services allegedly rendered to the decedent during her lifetime. The father and natural guardian of the decedent's four minor children contends on appeal (1) that the court erred in permitting the claimant to testify to legal services performed during the lifetime of the decedent, and (2) that the competent evidence was insufficient to support the court's allowance of the claim. There is merit in both contentions. Therefore, we reverse.

Eileen Walls Cecchine died intestate on February 16, 1980, survived by four minor children as her only heirs. Caroline Cecchine, the administratrix of her estate, filed a first and final account showing a balance for distribution in the amount of $6,484.97. The administratrix denied a claim filed by Michael G. Cullen, Esquire,*fn1 who contended that he was entitled to legal fees in the amount of $3,243.30 for services rendered to the decedent, as well as for costs incurred, from January 19, 1977 to February 16, 1980 in connection with a marital dispute and litigation. At a subsequent hearing on the claim for attorney's fees, Cullen submitted to the court by stipulation an affidavit by the attorney for the decedent's former husband (the father of the children and the present appellant) which recited some of the services rendered on behalf of the husband and referred to negotiations and hearings during which the claimant had been present on behalf of the decedent. The claimant was then permitted to testify, over objection, that he had prepared a petition under the Protection From Abuse Act, had prepared a complaint in assumpsit, had been

[ 336 Pa. Super. Page 115]

    involved in drafting and revising a property settlement agreement, and had represented the decedent in divorce and nonsupport proceedings. He said that he had been paid $673 for services performed prior to June 13, 1977 and had received $350 thereafter. His claim, he said, was for $3,243.30. He conceded that no bill for this amount had ever been sent to the decedent during her lifetime. A review of the record reveals no evidence of time records -- the claimant said he had kept none -- and no itemization of the services rendered.*fn2 Moreover, there was no evidence of the fair and reasonable value of the services rendered by the claimant.

The administratrix of the decedent's estate did not take an appeal from the decree entered by the Orphans' Court; and the present appeal was filed on behalf of the decedent's minor children by their father. The first issue to be determined, therefore, is whether the father of the minor heirs has standing to appeal. As a general rule, any interested party who has been aggrieved by a final order or decree of the Orphans' Court Division may appeal. Pa.R.A.P. 501; D. Hunter, Pennsylvania Orphan's Court Commonplace Book, Appeals ยง 1 (2d ed. 1979). In the instant case, it is the children of the decedent who are directly affected by the decree allowing the claim for counsel fees, for the payment thereof will reduce the balance remaining for distribution to them as heirs of the decedent. See: In re Estate of Hain, 464 Pa. 349, 353, 346 A.2d 774, 776 (1975). See also: In re Estate of Patrick, 487 Pa. 355, 358 n. 2, 409 A.2d 388, 390 n. 2 (1979). Because the children are minors, their interests on appeal can be represented by their father and natural guardian. See: Bertinelli v. Galoni, 331 Pa. 73, 75, 200 A. 58, 59 (1938) (any person may act as a minor's next friend provided he has no interest adverse to the minor he represents).

[ 336 Pa. Super. Page 116]

In Dart Estate, 426 Pa. 296, 232 A.2d 724 (1967), the Supreme Court said:

(1) "Claims of this nature against dead men's estates, resting entirely in parol, . . . presented generally years after the services in question were rendered, and when the lips of the party principally interested are closed in death, require the closest and most careful scrutiny to prevent injustice being done[;]" (2) all claims against the estate of a decedent must be proven by evidence which is clear, precise and convincing; (3) [claimant], proceeding on a quantum meruit theory, has the burden of proving (a) the performance of services, (b) the decedent's acceptance of them, and (c) their value; (4) [claimant] must overcome a presumption that any services rendered were paid for from time to time while they continued, a presumption which will gather strength with each succeeding year . . .; and ...


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