Johnson Estate

171 A.2d 518, 403 Pa. 476, 1961 Pa. LEXIS 491

• Court: Supreme Court of Pennsylvania
• Decided: May 2, 1961
• Docket: Appeal, 59
• Status: Published

Opinions

Opinion by

Me. Justice Benjamin B. Jones,

Harriet I. Johnson, a resident of Clarion County, died, testate, on December 19, 1950. By her will she created a trust of her residuary estate with the First National Bank of New Bethlehem, Pa. [now First Seneca Bank and Trust Company] as trustee. Under the terms of the trust the net income is payable to Emma I. Jacoby [decedent’s sister] during her lifetime; after her death, the net income is payable to Samuel O. Jacoby [decedent’s brother] during his lifetime; upon the death of the survivor of both life beneficiaries, the trust will terminate. Upon the termination of the trust, the trustee is directed to pay over, inter alia, “Twenty-five per centum (25%) [of the residuary estate] ... to the niece of my late husband, F. B. Johnson, Florence Billmyer, if she shall be living at the time of the distribution of my residuary estate". (Emphasis supplied) In the event that Florence Billmyer died prior to that event her share was to be paid to Bucknell University.-

Samuel O. Jacoby [a life beneficiary] died April 28, 1955 and Florence Billmyer, [the possible remainderman] died on August 8,1957. Emma I. Jacoby [the other life beneficiary] is still living.

On November 25, 1958, Florence Billmyer’s personal representative [Billmyer Estate] petitioned for a declaratory judgment in the Orphans’ Court of Clarion County. This proceeding sought the construction and interpretation of the eleventh paragraph of decedent’s will and a declaration that Florence Billmyer at the time of her death was vested with a twenty-five percent interest in the trust principal, subject to the rights in such trust of Emma I. Jacoby, the surviving life beneficiary. The First Seneca Bank and Trust Company, successor trustee, filed an answer to the merits and Bucknell University filed preliminary objections which averred that the court lacked jurisdiction to enter a declaratory judgment because of the availability of another remedy, i.e., audit of the trustee’s account and distribution in the Orphans’ Court. The court sustained the preliminary objections and dismissed the declaratory judgment petition. From that ruling, this appeal has been taken.

Bucknell contends that the question whether Florence Billmyer’s interest, under this will, was vested, subject to the life beneficiary’s interest, or was contingent upon Florence Billmyer’s survival of the surviving life tenant can only be resolved at the time of the audit of the trustee’s account, which account will be filed upon the termination of the trust [i.e., the death of the surviving life beneficiary] and, therefore, declaratory judgment will not lie. Conceding that such question could be resolved at the time of audit, nevertheless, the Billmyer Estate contends that declaratory judgment will lie regardless of the availability of this other remedy, a remedy which cannot be pursued until an uncertain time in the future, i.e., when the surviving life tenant dies.¹

The present issue is narrow: does the availability of this other remedy bar a declaratory judgment proceeding to construe and interpret this will? In determining this issue, we assume, with the parties and the court below, that the availability of this other remedy constitutes the only bar to the entertainment of jurisdiction of this proceeding and that all other jurisdictional requirements, i.e., presence of an “actual controversy”, the joinder of all necessary parties, etc., for a declaratory judgment are present.

On June 18, 1923, the legislature adopted the provisions of the Uniform Declaratory Judgments Act, a “remedial” statute whose stated purpose was “to settle and to afford relief from uncertainty, and insecurity with respect to rights, status, and other legal relations” and a statute was mandated by the legislature “to be liberally construed and administered”.²

Section 6 of the Pennsylvania Declaratory Judgments Act³ as originally enacted — identical with the corresponding section of the Uniform Act — provided “The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding.”

Until 1935 the interpretation and construction of section 6 by our Court was at variance with the interpretation and construction placed thereon by many other jurisdictions in the United States. The tenor and effect of many of our decisions was that, if there existed another available remedy, a declaratory judgment proceeding would not lie.⁴ However, during this same period of time, the court did entertain declaratory-judgment in cases involving the interpretation of wills even though another remedy was available.⁵ It is further noted that the Court during this period entertained a great many non-will cases by way of declaratory judgment where there was another remedy available to the parties.⁶

While a review of the decisions of this Court during that period does indicate some inconsistencies, it, nevertheless, was the position of our Court that, present another available remedy, declaratory judgment would not lie. By virtue of that position declaratory judgment became an exceptional or extraordinary, not an alternative, remedy...

In order to bring Pennsylvania in line with other jurisdictions in the interpretation of section 6, in 1935 an amendment to section 6 was drafted, presumably by ex-Chief Justice von Moschzisker after his retirement from the bench.⁷ Such amendment provided: “Section 6. Discretionary. Eelief by declaratory judgment or decree may be granted in all civil cases where an actual controversy exists between contending parties or where the court is satisfied that antagonistic claims are present between the parties involved which indicate imminent and inevitable litigation, or where in any such case the court is satisfied that a party asserts a legal relation, status, right, or privilege in which he has a concrete interest and that there is a challenge or denial of such asserted relation, status, right, or privilege by an adversary party who also has or asserts a concrete interest therein, and the court is satisfied also that a declaratory judgment or decree will serve to terminate the uncertainty or controversy giving rise to the proceeding. Where, however, a statute provides a special form of remedy for a specific type of case, that statutory remedy must be followed; but the mere fact that an actual or threatened controversy is susceptible of relief through a general common law remedy, or an equitable remedy, or an extraordinary legal remedy, whether such remedy is recognized or regulated by statute or not, shall not debar a party from the privilege of obtaining a declaratory judgment or decree in any case where the other essentials to such relief are present; . . .”

This proposed amendment clearly provided that the only other remedy which would bar declaratory judgment was a “special form of remedy for a specific type of case” and the fact that another remedy was available would not constitute a bar to declaratory judgment. When that amendment was adopted by the legislature, it was further amended in the following manner : “. . . but the case is not ripe for relief by way of such common law remedy, or extraordinary legal remedy, or where the party asserting the claim, relation, status, right, or privilege and who might bring action thereon, refrains from pursuing any of the last mentioned remedies. Nothing herein provided is intended to or shall limit or restrict the general powers or jurisdiction conferred by the act hereby amended; but proceeding by declaratory judgment shall not be permitted in any case where a divorce or annulment of marriage is sought.” The legislature in the Act of April 25, 1935, P.L. 72, §1⁸ adopted the language of both the so-called von Moschzisker amendment and the language of the amendment to that amendment.

Approximately eleven months after the passage of the 1935 statute, this Court in Allegheny County v. Equitable Gas Co., 321 Pa. 127, 183 A. 916, speaking through Mr. Justice Linn, stated [p. 129] “that . . . [section 6 of the 1935 statute] provides that a declaration may be made, notwithstanding the existence of a common law remedy, when it appears that ‘the case is not ripe for relief by way of such common law remedy . . in other words, if the case is ‘ripe’ for relief by the common law remedy, that remedy shall be preferred.” (Emphasis supplied) For practical purposes, the construction of section 6 by that decision equated the construction of section 6 prior to its amendment in 1935 and restored declaratory judgment to its status as an extraordinary rather than alternative remedy.⁹ In Moore v. Moore, 344 Pa. 324, 25 A. 2d 130, we recognized [p. 327] that the “1935 amendment to the Act widens its scope” and [p. 328] that “[t]he fact that the controversy is susceptible of relief through some other remedy, does not debar declaratory judgment relief where, . . ., the case is not ripe for relief by way of such other remedy.”¹⁰

Finally, in Stofflet & Tillotson v. Chester Housing Authority, 346 Pa. 574, 31 A. 2d 274, the Court, speaking through Mr. Justice Parker, noted [p. 577] that “. . . [declaratory judgment] is not an optional substitute for established and available remedies” and that: “ ‘The Uniform Declaratory Judgments Act. . . was not intended for, and should not be invoked in cases where the judgment sought can be had as expeditiously in the ordinary course of legal procedure as it can under the statute’ ” which was the pre-1985 statute position of the Court as set forth in Nesbitt v. Mfrs. Casualty Ins. Co., 310 Pa. 374, 380, 165 A. 403. In Valley Railroad Co. v. Delaware, Lackawanna & Western Railroad Co., 346 Pa. 579, 31 A. 2d 276, the Court refused declaratory judgment because there was a remedy available in assumpsit.¹¹

As a result of these decisions, the construction of section 6, as amended, reached the same result as the construction of section 6 prior to its amendment, i.e., declaratory judgment would not lie if another remedy was available.

On May 26, 1943¹² the legislature again amended section 6 by removing from the 1935 Act that portion of its language which had been added to the von Moschziskeb amendment. The 1943 amendment is exactly the same as the von Moschziskeb proposed amendment of 1935.

An examination of the legislative history of the 1923, 1935 and 1943 statutes, considered in the light of the decisions of this Court interpretive of the 1923 and 1935 statutes, clearly reveals the intent of the legislature that declaratory judgments be considered an alternative, rather than an extraordinary, remedy and that the existence of another remedy, in law or in equity, will not per se bar declaratory judgment. Since passage of the 1943 statute our Court has consistently taken this position.¹³

In Philadelphia Manufacturers Mutual Fire Insurance Company v. Rose, 364 Pa. 15, 70 A. 2d 316, there was a proceeding under the Uniform Declaratory Judgments Act to ascertain the coverage or non-coverage of a fire insurance policy which had been dismissed in the court below upon the ground that the parties had an adequate remedy in an action of assumpsit for the adjudication of their rights. In reversing the court below, Mr. Justice Linn stated that the court below gave inadequate effect to the 1943 statute (pp. 22, 23) : “The legislature, by the amendment of 1943, clearly provided that neither the fact that the defendant might have pursued his ‘general common law remedy’ by suing in assumpsit, nor the fact that plaintiff might have used an ‘equitable remedy’ to reform the policy (nor both facts together) shall, in the words of the amendment, ‘debar a party . . . from the privilege of obtaining a declaratory judgment or decree in any case where the other essentials to such relief are present.’

“The cases . . . cited by the court in banc need not detain us in considering the amendment of 1943, which imposes a different or more restricted measure of discretion than was imposed originally: Kariher’s Petition, 284 Pa. 455, 131 A. 265 (1925) and Capital Bank and Trust Co.’s Petition, 336 Pa. 108, 6 A. 2d 790 1939), arose and were decided before that amendment. In Schoenbrun v. Nettrour, 360 Pa. 474, 61 A. 2d 868 (1948), which was brought after 1943, the petition was dismissed because the elements of a justiciable controversy under the act were not even alleged.

“With respect to the cases referred to on the second proposition, that assumpsit or bill to reform the policy constitute other available remedies, it is sufficient to say that the cases cited, Nesbitt v. Mfrs. Casualty Ins. Co., 310 Pa. 374, 165 A. 403 (1933); Stofflet & Tillotson v. Chester Housing Authority, 346 Pa. 574, 31 A. 2d 274 (1943); Valley Railroad Co. v. Delaware, Lackawanna & Western R. Co., 346 Pa. 579, 31 A. 2d 276 (1943); Allegheny County v. Equitable Gas Co., 321 Pa. 127, 183 A. 916 (1936), arose before the amendment of 1943. In Gerety Estate, 349 Pa. 417, 419, 37 A. 2d 792 (1944), we applied the provision ‘Where, however, a statute provides a special form of remedy for a specific type of case, that statutory remedy must be followed.’ Obviously neither the ‘general common law remedy’ of assumpsit, nor the ‘equitable remedy’ by bill to reform, is within the class ‘where ... a statute provides a special form of remedy for a specific type of case.’ The decision in Gerety Estate does not support the order appealed from, quite the contrary.

“The purpose of the original draftsman of the amendment of 1935 failed by additions made to his draft during its consideration by the legislature. The amendment of 1943 was obviously an effort to accomplish what bad failed in 1935. We must give the amendment its clearly expressed effect where, as here, the parties have brought themselves within its terms.”

In Burke v. Pittsburgh Limestone Corp., 375 Pa. 390, 391, 392, 100 A. 2d 595, Mr. Justice Arnold stated: “We have decided to accept such proceedings [declaratory judgment proceedings] even though under the facts a common law action could have been brought.” See also: Eureka Casualty Co. v. Henderson, 371 Pa. 587, 92 A. 2d 551; Lifter Estate, 377 Pa. 227, 103 A. 2d 670; Guerra v. Galatic, 185 Pa. Superior Ct. 385, 137 A. 2d 866; Stoutenburgh v. Upper Moreland-Hatboro Joint Sewer Authority, 191 Pa. Superior Ct. 596, 159 A. 2d 250.

If “a statute provides a special form of remedy for a specific type of case” the existence of such remedy will bar declaratory judgment (Castle Shannon Coal Corporation v. Upper St. Clair Twp., 370 Pa. 211, 212, 88 A. 2d 56). The existence of any other form of remedy will not per se bar declaratory judgment. Such is the mandate of the legislature.

Whether a court will take jurisdiction of a petition for declaratory judgment is a matter of judicial discretion (Lifter Estate, supra; Eureka Casualty Co. v. Henderson, supra) and the legislative mandate that the existence of another available remedy shall not bar declaratory judgment simply withdraws from consideration by the court the existence of such remedy as a determining factor in the exercise of the court’s discretion. The question still arises for the court whether, under the facts and circumstances, judicial discretion would be wisely exercised if declaratory judgment were granted. As former Chief Justice Stekn well stated in Eureka Casualty Company v. Henderson, supra, p. 592: “One of the chief objectives which declaratory judgment procedure was aimed to accomplish was the furnishing of an expeditious remedy for the settlement-of claims, which, in the words of the statute, ‘indicate imminent and inevitable litigation’ — to settle controversies which, for some reason or other, could be determined more advantageously if settled promptly rather than at some future time when they would require adjudication.”

However, a declaratory judgment must not be employed for the determination of rights in anticipation of an event or events which may never occur,¹⁴ or for the consideration of moot cases or as a medium for the rendition of advisory opinions (Kariher’s Petition (No. 1), 284 Pa. 455, 131 A. 265). In the exercise of its judicial discretion whether to grant or refuse declaratory judgment, a court may well heed the language of this Court in Kariher’s Petition (No. 1), supra, pp. 471, 472: “. . . that a proceeding to obtain such a judgment will not be entertained where the court lacks jurisdiction of the subject-matter involved [citing case] or where another statutory remedy has been specially provided for the character of case in hand [citing cases]; and that jurisdiction will never be assumed unless the tribunal appealed to is satisfied that an actual controversy, or the ripening seeds of one, exists between parties, all of whom are sui juris and before the court, and that the declaration sought will be a practical help in ending the controversy: [citing cases]. Moreover, in a declaratory judgment proceeding the court will not decide future rights in anticipation of an event which may not happen, but, just as in the ordinary executory action, it will wait until the event actually takes place, unless special circumstances appear which warrant an immediate decision, as, for instance, where present rights depend on the declaration sought by plaintiff; and even then such rights will not be determined unless all parties concerned in their adjudication are present and ready to proceed with the case (see section 11, of the act) so that the judgment rendered will make the issues involved res judicata in the full sense of that term.”

In the instant situation, what Billmyer Estate seeks is a construction of a paragraph of decedent’s will. Under section 4 of the Act of 1923, supra,¹⁵ it is provided : “Any person interested, as or through an executor, administrator, trustee, guardian, or other fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui que trust, in the administration of a trust, or of the estate of a decedent, an infant, lunatic, or insolvent, may have a declaration of rights or legal relations in respect thereto — (a) To ascertain any class of creditors, devisees, legatees, heirs, next of kin, or others; or (b) To direct the executors, administrators, or trustees to do or abstain from doing any particular act in their fiduciary capacity; or (c) To determine any question arising in the administration of the estate of trust, including questions of construction of wills and other writings.”

In Cryan’s Estate, supra, p. 397, it was said: “Such a remedy [by way of declaratory judgment] is peculiarly appropriate to the orphans’ court, vested as it is with supervisory powers over the administration of decedents’ estates, . . .” Section 4 of the Act is meaningless unless, in appropriate situations, courts take upon themselves the construction of wills.

In the instant situation there is an actual controversy as to the right of Billmyer Estate to share in decedent’s estate; the determination of such right does not depend upon the happening of any event or events which may not occur; all parties in interest are sui juris and before the court; to postpone construction of this will to an uncertain time in the future when an audit of the trustee’s account can be held would benefit no one and could harm the Billmyer Estate. In their present posture the instant circumstances present a situation where declaratory judgment offers the only reasonable and practical solution to settle the controversy between the' parties and to render justice now rather than at some uncertain time in the future.

Order reversed.

1 The Billmyer Estate points out that the decedent’s executor filed his final account on July 13, 1951 and made distribution of the residuary estate to the trustee. Billmyer Estate, therefore, contends that such action constituted the “distribution of the residuary estate” contemplated under the terms of the decedent’s will as the event which Florence Billmyer had to survive.

2 Act of June 18, 1923, P.L. 840, §12, 12 PS §842.

3 Act of 1923, supra, §6.

4 In one of the first eases arising under the Act, List’s Estate, 283 Pa. 255, 129 A. 64, this Court (although, strangely enough, it passed upon the merits of the controversy) refused to entertain a declaratory judgment to construe a will because at the time there was pending in the Orphans’ Court an audit of an account at which audit the will could be construed. In the landmark decision in this area of the law, Kariher’s Petition (No. 1), 284 Pa. 455, 471, 131 A. 265, Chief Justice von Moschziskeb, passing upon constitutionality of the Act, stated that a declaratory judgment would not be entertained “where another statutory remedy has been specially provided for the character- of case in hand.” (Emphasis supplied) This statement in Kariher was in line with the position taken in other jurisdictions. Since there was already pending in the Orphans’ Court a proceeding which would, achieve the same purpose as sought in a declaratory judgment, the Court in Dempsey’s Estate, 288 Pa. 458, 460, 137 A. 170 dismissed a proceeding for declaratory judgment at the same time stating that the relief sought by declaratory judgment “could have been .obtained as speedily and effectively in the proceeding to compel an account.” In Brown’s Estate, 289 Pa. 101, 137 A. 132, although there was an alternative remedy, we entertained a declaratory judgment to determine whether a residuary clause in a will violated the rule against perpetuities and determined the rights of the parties. In Leafgreen v. La Bar, 293 Pa. 263, 264, 142 A. 224, the Court dismissed a declaratory judgment on the ground that another “equally serviceable remedy” was at hand. [It will be noted that the “statutory remedy” in Kariher is now broadened to “equally serviceable remedy”.] In Ladner v. Siegel, 294 Pa. 368, 373, 144 A. 274, it was stated that a declaratory judgment would not lie “if another legal remedy is equally available.” In Taylor v. Haverford Township, 299 Pa. 402, 149 A. 639, the Court returned to its position in Kariher and stated that declaratory judgment would not lie where another statutory remedy was available. In Sterrett’s Estate, 300 Pa. 116, 150 A. 159, the Court refused to determine by way of declaratory judgment whether either one of -two wills constituted an effective exercise of a power of appointment on the ground, inter alia, that “another established remedy” was available. In Cryan’s Estate, 301 Pa. 386, 152 A. 675, we entertained declaratory judgment to construe a will but stated that declaratory judgment would not lie “where another remedy [is] available.” In Orndoff v. Consumers Fuel Co., 308 Pa. 165, 162 A. 431, we entertained declaratory judgment, even though the questions could have been decided in an equity action, upon the ground that equity was not “a more appropriate remedy”. In Nesbitt v. Manufacturers’ Casualty Insurance Co., 310 Pa. 374, 380, 165 A. 403, we said that declaratory judgment could not be entertained where the question “can be litigated in the established course of legal and equitable procedure.” In Bell Telephone Company of Pennsylvania v. Lewis, 313 Pa. 374, 169 A. 571, we refused declaratory judgment because another “adequate remedy was available.”

5 List’s Estate, supra; B’Nai B’Rith Orphanage v. Roberts, 284 Pa. 26, 130 A. 298; Kariher’s Petition (No. 1), supra; Dommell’s Estate, 286 Pa. 509, 134 A. 379; Brown’s Estate, supra; Smith’s Petition, 291 Pa. 129, 139 A. 832; Kidd’s Estate, 293 Pa. 21, 141 A. 644. Cf.: Lyman v. Lyman, 293 Pa. 490, 143 A. 200, and Sterrett’s Estate, supra, where the court refused declaratory judgment for the construction of a will.

6 Reap v. Wyoming Valley Trust Co., 300 Pa. 156, 150 A. 465; Sloan v. Longcope, 288 Pa. 196, 135 A. 717; Klauder v. Cox, 295 Pa. 323, 145 A. 290; Malley v. American Indemnity Co., 297 Pa. 216, 146 A. 571; Cupp Grocery Go. v. Johnstown, 288 Pa. 43, 135 A. 610; Devlin’s Trust Estate, 284 Pa. 11, 130 A. 238; Smith’s Petition, supra; B’Nai B’Rith Orphanage v. Roberts, supra; Dommell’s Estate, supra; Brown’s Estate, supra.

7 Borchard, Declaratory Judgments (2nd ed.) p. 321.

8 12 PS §836.

9 In Erie City v. Phillips, 323 Pa. 557, 187 A. 203, and Bergman v. Gross, 329 Pa. 67, 196 A. 488, we reiterated that declaratory judgment would not lie where a statutory remedy has been provided for.

10 Grambo v. South Side Bank & Trust Co., 141 Pa. Superior Ct. 176, 14 A. 2d 925; Day v. Ostergard, 146 Pa. Superior Ct. 27, 21 A. 2d 586.

11 See also: Gerety Estate, 349 Pa. 417, 37 A. 2d 792; Keefer Estate, 351 Pa. 343, 41 A. 2d 666; Fahey Estate, 356 Pa. 535, 52 A. 2d 580.

12 Act of May 26, 1943, P.L. 645, §1, 12 PS §836.

13 In Wirkman v. Wirkman Co., 392 Pa. 63, 66, 139 A. 2d 658, it was said: “A declaratory judgment should not he granted where a more appropriate remedy is available.” However, this statement should be read in connection with the decisional point in WMcman which was that the parties had contractually bound themselves to ¡pursue arbitration to the exclusion of prior judicial relief and not that arbitration was another available remedy.

14 Kahn v. William Goldman Theatres, Inc., 341 Pa. 32, 17 A. 2d 340; Congregational Conference Appeal, 352 Pa. 470, 43 A. 2d 1; Schoenbrun v. Nettrour, 360 Pa. 474, 61 A. 2d 868; Malick’s Pettion, 133 Pa. Superior Ct. 53, 1 A. 2d 550.

15 12 PS §834.