McClatchy Estate

249 A.2d 325, 433 Pa. 242, 1969 Pa. LEXIS 556

• Court: Supreme Court of Pennsylvania
• Decided: January 15, 1969
• Docket: Appeal, No. 226
• Status: Published

Opinions

Opinion by

Mr. Justice Cohen,

This is an appeal from a decree of the Orphans’ Court of Montgomery County dismissing objections to the account of John B. McClatchy, executor of the estate of Mary E. McClatchy, deceased. This case was tried as a companion case in the court below with MeClatchy Estate, also decided today. 433 Pa. 232, 249 A. 2d 330 (1969).

Appellants, heirs under the will of decedent, seek to surcharge the executor for his failure to include the following items in decedent’s estate:

(1) $59,849.25 paid to the 69th Street Community House Corporation for life insurance premiums advanced on policies on the life of decedent’s husband. .

(2) Amounts paid by the estate for the executor’s commission and attorneys’ fees.

I Life Insurance Premiums

Between 1946 and 1957, the 69th Street Community House Corporation paid life insurance premiums on policies owned by decedent on the life of her husband in the amount of $59,849.25. The executor’s account disclosed that Community was reimbursed by the es.tate for the premiums paid.

Unlike the situation which existed in the McClatchy Estate, supra, there is no evidence that there was any oral or written agreement between decedent and Community for repayment of those premiums. In order to justify this payment the executor relies exclusively upon testimony concerning a statement made by decedent’s husband to an employee of Community. However, there is no evidence that in making this statement decedent’s husband was acting as an agent of decedent and/or had the power to commit her or her estate to any obligation. Consequently, we are of the opinion that the payment of $59,849.25 to Community was improper, and that the executor should be surcharged for that amount.

II Executor’s Commission and Attorneys’ Pees

Appellants argue that the estate should not pay the executor’s commission and attorneys’ fees when the services of the executor and the attorneys were directed primarily toward proving that certain assets were not includable in the estate.

We reject this argument for the same reasons enunciated in our decision in the McClatchy Estate, supra. The executor’s commission of $7,225 and the attorneys’ fees of approximately $8,750 are reasonable and proper in light of the fact that the net balance of decedent’s estate was in excess of $250,000. Furthermore, there is no evidence indicating that the executor and the attorneys claimed additional fees for the present litigation.

We therefore are of the opinion that appellants’ objection as to the propriety of paying the executor’s commission and attorneys’ fees from the estate are without merit and should be dismissed.

Decree reversed in part and affirmed in part and the case remanded to the court below to enter a decree consistent with this opinion. Costs on appellee.

Mr. Justice Musmanno did not participate in the decision of this case.