In re Estate of Cheney

33 Pa. D. & C.4th 103, 1996 Pa. Dist. & Cnty. Dec. LEXIS 152
CourtPennsylvania Court of Common Pleas, Bucks County
DecidedAugust 16, 1996
Docketno. 59617
StatusPublished

This text of 33 Pa. D. & C.4th 103 (In re Estate of Cheney) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Bucks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Estate of Cheney, 33 Pa. D. & C.4th 103, 1996 Pa. Dist. & Cnty. Dec. LEXIS 152 (Pa. Super. Ct. 1996).

Opinion

SOKOLOVE, S.J.,

Juliette Daniel, executrix of the estate of Walter H. Cheney, deceased, has filed an appeal to the Pennsylvania Superior Court from our final decree of June 6, 1996. By that decree we held that the decedent’s last will and testament, which had been admitted to probate by the Register of Wills of Bucks County, was modified pursuant to [105]*10520 Pa.C.S. §2507(3) by the decedent’s later marriage. We, therefore, awarded the decedent’s estate to his widow as his sole intestate heir and directed the executrix to deliver the decedent’s estate to the widow’s attorney and to file an account of her administration of the decedent’s estate. We will explain the history of this simple but unduly extenuated matter and the reasons for our decree.

The decedent died on April 5, 1993. On June 4, 1993 the register granted letters testamentary to Juliette Daniel and admitted to probate the decedent’s last will and testament, dated December 18, 1989. The card of attorney Darryl A. Irwin is stapled to the register’s decree granting the letters.

On September 28,1994, the executrix, Juliette Daniel, represented by Mr. Irwin, filed two petitions with the orphans’ court. Both petitions requested citations directed to Geraldine Ida Cheney. One petition asked the court to void certain financial transactions allegedly made by or on behalf of the decedent in favor of JMs. Cheney while the decedent was demented. The second petition, verified by the executrix and Mr. Irwin, sought Ms. Cheney’s surrender to the executrix of real property owned by the decedent. Paragraph 7 of the second petition stated that, “Respondent, who was married to decedent Walter H. Cheney at the time of his death, is aware of the intention of the executrix to sell the said real property pursuant to the terms of paragraph SECOND of the above-referenced last will and testament of Walter H. Cheney.”

Pursuant to our preliminary decrees, citations were awarded on the executrix’ two petitions. Ms. Cheney answered the petitions on October 13, 1994, alleging in new matter to the petition for possession of real estate that since her December 3, 1990 marriage to [106]*106the decedent post-dated his will, under 20 Pa.C.S. §2507(3), she was entitled to his entire estate as his sole intestate heir. Ms. Cheney’s answer to the other petition contained a portion improperly designated a “cross claim.”1 This “cross claim” sought recognition for Ms. Cheney as the decedent’s surviving spouse and a decree distributing the decedent’s estate to her, as well as an accounting by the executrix of her administration.

On October 20, 1994, Ms. Cheney filed a separate petition seeking the same relief requested in the “cross claim,” namely the modification of the will under 20 Pa.C.S. §2507(3) by reason of the later marriage, the distribution of the decedent’s entire estate to her as the sole intestate heir and the filing of an account by the executrix. A citation was issued on this petition, directed to the executrix and returnable at the hearing previously scheduled for the executrix’ petitions on November 3, 1994.

Mr. Irwin appeared for the executrix at the November 3, 1994 hearing. We recognized then that our decision on Ms. Cheney’s petition could moot the executrix’ petitions and would logically be heard first. Because the executrix had not been given sufficient time to respond to that petition, we allowed her additional time. We directed, with the parties’ agreement, that they account to each other for the decedent’s assets held by them respectively. Ms. Cheney agreed to prepare her account within 30 days, and the executrix agreed to prepare her account within 45 days. Ms. Cheney also [107]*107agreed, pending further hearing, that she would not sell the decedent’s real estate, where she continued to reside, and that the disputed funds would be preserved or that she would fully account for their use.

The executrix never filed an answer or reply to Ms. Cheney’s petition, new matter or “cross claim.” On May 10, 1995, Ms. Cheney moved for a hearing on her petition. Hearing was scheduled for June 26, 1995 but continued as the parties supposedly attempted to negotiate a compromise. Ms. Cheney again moved for a hearing on her petition on October 12, 1995. The hearing occurred on November 16, 1995.

Mr. Irwin appeared for the executrix at that hearing. Ms. Cheney introduced prima facie evidence of her entitlement to relief under 20 Pa.C.S. §2507(3). We reviewed the register’s file, which held the decedent’s original will, dated December 18, 1989. We also received a copy of the original marriage certificate of the decedent and Ms. Cheney (identified as “Ida Maddox”) and the orphans’ court division’s certification of that marriage. Based upon this evidence, we held that Ms. Cheney had met her initial burden of proof to establish her marriage to the decedent after the execution of his last will and testament. Mr. Irwin, despite having had over a year to prepare, did not have his witnesses available to testify that day. We generously granted his request for a continuance to enable his client to prove that the documented marriage was invalid. We advised Mr. Irwin to file a motion for a new hearing date but also allowed Ms. Cheney’s attorney to file for a hearing if Mr. Irwin failed to do so. Mr. Irwin indicated that he would be ready for a hearing in January.

Again, Mr. Irwin took no action. On February 1, 1996, Ms. Cheney’s attorney filed for a hearing date. Hearing was scheduled for March 25, 1996. By order [108]*108of February 21, 1996, the March 25 hearing was continued until 10 a.m., April 11, 1996 because of the court’s scheduling conflict. The file reflects that the February 21, 1996 order was sent to Mr. Irwin.

Beginning at 4:27 the afternoon of April 10, 1996, less than 18 hours before the scheduled hearing, Mr. Irwin sent a letter by facsimile transmission to the court. He had not communicated with the court, either formally or informally, since the November 16, 1995 hearing. The same letter was sent at 4:31 and 4:35 that afternoon as well. The letter stated the following:

“I am the attorney for executrix, Juliette Daniel and the attorney for the above captioned estate which has a hearing listed for Thursday, April 11, 1996, at 10 a.m., before this honorable court.

“Please be advised that I am the attorney for Mr. William C. Stout which is also listed for Thursday, April 11, 1996 in federal court.

“Therefore, I am unable to appear in your courtroom and I respectfully request that this matter be re-listed.

“I have indicated to my client Ms. Daniel that I am no longer representing her or the estate because of a conflict of interest.

“Kindly reschedule this matter to remove me as attorney of record.

“If you have any questions feel free to call me at your earliest possible convenience.

“Thank you for your anticipated kind and considerate handling of my requests.”

We were unaware of Mr. Irwin’s correspondence until Ms. Cheney’s attorney presented us with a copy at the appointed hearing April 11, 1996. Of course, Mr. Irwin was not present and had not sent another attorney to cover for him. We denied his untimely request for [109]*109a continuance as well as his inappropriate effort to withdraw his appearance as attorney for the executrix.2 We found that Ms.

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Cite This Page — Counsel Stack

Bluebook (online)
33 Pa. D. & C.4th 103, 1996 Pa. Dist. & Cnty. Dec. LEXIS 152, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-estate-of-cheney-pactcomplbucks-1996.