Dempsey's Estate , 288 Pa. 458 ( 1927 )

Argued January 3, 1927. Testator left eight children to survive him. By his will he gave to two of his sons his interest in a firm of which he was a member, gave the residue of his estate to his wife for life or during widowhood, with remainder per stirpes to all his descendants surviving the life estate, and named the widow and the two sons as executors. The widow renounced and the sons were appointed.

Within a couple of years they filed their first account. By its adjudication, the balance on hand was awarded to the widow during widowhood, upon entering security as required by law. Nothing was said as to what should be done therewith when she died or remarried. She did not enter the security; the executors continued in possession for nearly sixteen years, handling the estate exactly as they had done previously, rendering to the widow, from time to time, more or less general statements, and paying to her some of the income shown thereby.

Towards the end of her life they ceased doing these things, and, one of them having died, on her application a citation was granted on the surviving executor to show cause why he should not file an account. He answered, denying that either he or his coexecutor had been managing the assets of the estate, or that he had in his possession any of those assets. Subsequently he filed a petition under the Uniform Declaratory Judgments Act of June 18, 1923, P. L. 840, to have determined to what extent, if any, he was obliged to account. An answer was filed by the widow; the two proceedings were referred to a master, who decided the surviving executor was obliged to account; the orphans' court overruled his exceptions and from its decree, which followed in due course, he took this appeal.

The petition under the Uniform Declaratory Judgments Act should have been dismissed, since all that was sought thereby could have been obtained as speedily and effectively in the proceeding to compel an account: List's Est., 283 Pa. 255. Under the circumstances here appearing, the only possible result was to produce delay and to increase expense.

This leaves open only the question of the duty to account, and upon this there appears to be no doubt. Appellant and his deceased coexecutor were admittedly handling the assets of the estate, and, to some degree at least, accounting to the widow for the income from them. Whether they were the owners of these assets, as he claimed they were, because of the business, or whether they passed to the widow for life, with remainder to testator's surviving descendants per stirpes, depended on a proper construction of the will, as affected, if at all, by the actions and agreements of the parties. That question will properly arise and be decided when the account has been filed and adjudicated and the balance for distribution thereby determined. This is especially true since the widow is now dead, thereby necessitating a distribution of the corpus, as the adjudication of the first account did not attempt to determine who was entitled to receive it.

The decree of the court below, so far as it relates to the duty to file an account, is affirmed, and the appeal is dismissed at the cost of appellant.