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ESTATE MILDRED M. PRESTON. APPEAL JOHN A. PRESTON (02/02/89)

argued: February 2, 1989.

IN RE ESTATE OF MILDRED M. PRESTON. APPEAL OF JOHN A. PRESTON


Appeal from the Order of the Court of Common Pleas of Bradford County, Orphans' Division at No. 2 July 1986.

COUNSEL

Scott Williams, Williamsport, for appellant.

Richard D. Sheetz, Towanda, for appellee.

Wieand, Popovich and Hester, JJ.

Author: Popovich

[ 385 Pa. Super. Page 49]

This appeal questions the manner of the calculation of executor's commissions and attorney's fees due for the administration of a decedent's estate. Herein, for the purposes of calculating the commissions and fees due, the orphans' court included, as assets of the estate, marital assets which passed outside the estate. The court also calculated the commissions and fees using an arbitrary percentage-formula promulgated by the court via a schedule called "the Attorney General's Schedule of Attorney's Fees."*fn1 We dismiss this appeal as it is interlocutory. However, in an effort to end the proscribed practices operating in the Orphans' Court of Bradford County (and, perhaps, in other jurisdictions of our Commonwealth), we instruct the lower court on the proper procedure for the calculation of executors and attorneys fees.

This appeal arises from the denial by Bradford County Court of Common Pleas, Orphans' Court Division, of the appellant's request to compel the executor of Mildred M. Preston's estate to file exceptions to the estate of John E. Preston. On appeal, the appellant, John A. Preston,*fn2 asserts

[ 385 Pa. Super. Page 50]

    that, because he is a distributee under the will of Mildred M. Preston, he therefore has a financial interest in both the estate of Mildred M. Preston and the estate of John E. Preston.*fn3 Consequently, he contends that (1) he may compel the executor of Mildred M. Preston's estate to file exceptions to the grossly excessive disbursements made from the estate of John E. Preston;*fn4 or, in the alternative, (2) that he can compel the executor of the estate of John E. Preston to apply for review of that estate.

Briefly the facts are these: On October 5, 1984, John E. Preston died, and J. Earl Preston was named as executor of the estate. Upon his death, John E. Preston's estate passed to his wife, Mildred M. Preston. However, approximately four months later, prior to settlement of her husband's estate, Mildred M. Preston expired. J. Earl Preston was also named as executor of Mildred's estate. The first and final accounting of the John E. Preston's estate was filed on or about May 8, 1985, showing principal in the amount of $23,411.46. Thereafter, the Bradford County Court of Common Pleas, Orphans' Court Division, indicated that the

     attorney's fee and the executor's commission were calculated on the total assets of the estate, which appeared on the Inheritance Tax return as $105,105.35. This figure includes jointly owned property in the amount of $82,277.49, upon which the attorney and executor are entitled to calculate their fees.*fn5 (Tr. Op. 6/8/88 p. 2) (emphasis added)

[ 385 Pa. Super. Page 51]

The accounting listed disbursements out of the principal amounting to $21,293.47 which included the court's calculation of executor's commissions and attorney's fees amounting to $4,653.17 each.*fn6 The remaining corpus of the estate which poured-over into the estate of Mildred M. Preston was $2,601.00. The will of Mildred M. Preston provided that the appellant's father was to receive a specific bequest of $10,000.00 which was to be placed in an interest bearing account and thereafter used for the education of the appellant with the remainder passing to the appellant when he reached the age of twenty-one (21).

The appellant filed exceptions to the first and final accounting of John E. Preston's estate, stating that the executor's and attorney's fees were excessive. On April 23, 1986, the lower court dismissed the appellant's exceptions because he lacked standing to file exceptions to John E. Preston's estate, and, even if he had standing, the exceptions were untimely.

The appellant then petitioned for the removal of J. Earl Preston as administrator of Mildred M. Preston's estate, and, on August 11, 1986, the lower court denied that petition.*fn7 Subsequently, on June 8, 1988, the lower court denied another petition by the appellant, this one asking that the executor of the estate of Mildred M. Preston be compelled to file exceptions to the estate of John E. Preston. This appeal followed. As of the date of this appeal, a first and final accounting of the estate of Mildred M.

[ 385 Pa. Super. Page 52]

Preston has not been filed. As a result of the appellant's petition to compel the executor to file exceptions all proceedings relating to the estate of Mildred M. Preston were stayed, and the estate remains open.

Although neither party has raised the issue of jurisdiction, we may address the issue sua sponte. Wertz v. Anderson, 352 Pa. Super. 572, 508 A.2d 1218 (1986). Before we can address the merits of an appeal, we must determine whether we have jurisdiction to adjudicate the claims raised. Generally, interlocutory orders are not appealable, and appeals must be taken from a final order. Matter of Estate of Meininger, 367 Pa. Super. 105, 532 A.2d 475 (1987); Elderkin v. Sedney, 354 Pa. Super. 253, 511 A.2d 858 (1986).

Instantly, a final accounting of Mildred M. Preston's estate has not been filed, and it follows that an adjudication or decree of distribution has not been filed by the court. In Meininger, supra, we were faced with a situation similar to that now before us. Therein, the appellant objected to the accounting alleging that the executor had abused his confidential relationship with the decedent to enrich himself. The objections were dismissed. The appellant then filed a motion to grant exceptions to the dismissal order. This motion was also denied, and the Meininger appeal ...


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