Young's Estate , 1902 Pa. LEXIS 540 ( 1902 )

Opinion by

Mr. Justice Mitchell,

In July, 1886, three months after the death of John Young, a controversy which had arisen between his widow and his daughter (who was executrix and principal devisee) was settled by a formal agreement under seal whereby the widow accepted the provisions of the will, and the annuity provided for her in it was secured expressly as a first charge on the rents of certain specified houses.

Subsequently, although she had in the meantime received and receipted for several instalments of the annuity as due to her “under the will,” the widow repudiated the agreement and claimed to take against the will. The auditor held that she could do so, on the ground that she was ignorant of the extent of the estate and was deceived by statements of the executrix and her husband. Upon the evidence we should not have reached that conclusion, but giving her the benefit of the auditor’s finding on that point, we come to a more serious impediment.

In March, 1887, she petitioned the orphans’ court for a citation to the execurix to file an inventory. The answer of the executrix set up the direction of the will that no inventory should be filed, the agreement of July, 1886, to take under the will, and the conversion by the executrix on the faith of that agreement of a considerable part of the personal estate by investment in new buildings on a vacant lot. Testimony was taken under a rule, and while this was pending the parties came to an agreement, and in November, 1887, the petition was withdrawn, the court making the formal order of record: “ This petition withdrawn in open court by Mr. Gobin, attorney for petitioner, she, the ment of the case and accepted under the will. Permission to withdraw is given. J. B. McPherson, A. L. J.”

It appears by the e suit of a detailed exan: vidence that this settlement was the reination of the estate, both real and personal, item by item, by the widow’s counsel and the husband of the executrix who reached a joint valuation and agreed upon the settlement which in the judgment of her counsel was much more favorable to the widow than the assertion of her legal rights against the will. By it she remained in possession of the furniture and residence given her by the will, her annuity was secured to | her and she received in cash $2,250. She acquiesced in the settlement, accepted the money to which she had no other claim except under it, and the petition was formally withdrawn of record. With this the matter appeared to be closed, and so remained for more than a year and a half. In July, 1889, however, the widow through new counsel obtained a citation to the executrix to account. The petition set forth only that she was a widow, that her husband had been dead more than a year, and that the executrix had filed no account. The answer of the executrix recited the provisions of the will, and the agreement of July, 1886, averring that respondent was advised that petitioner had no further interest in the estate and therefore was not entitled to an account; and further setting up the forcible and illegal breaking of a safe in the decedent’s house by the petitioner in the summer of 1886, and the abstraction of papers necessary for respondent to have in order to make an account. To this the only reply was a formal joinder of issue. Depositions were taken and the court made the following decree: “ The petitioner’s annuity of $600 is made 'payable out of rents and of the interest of certain money. This entitles her to an account, and her right thereto is not impaired by the agreement which makes the rent of several specified houses “primarily ’’ liable for the annual sum above stated. But the papers in the petitioner’s possession majr be needed by the executrix and must be delivered to her. We therefore order that if the papers belonging to the estate which are now in the petitioner’s possession be delivered to the executrix or to her counsel on or before November 15, the executrix filed her account on or before December 28.” This decree will be referred to again in another connection, but it is quoted here as confirmatory of the fact that up to this time whatever the widow’s intentions as to the settlement of 1887 may have’ been, it had not been directly questioned by her and Judge McPherson certainly regarded it as in full force. The contest before him was a claim for an account and a denial that the widow had any further interest in the estate which entitled her to an account. The decree was that she had an interest under the will to see that her annuity was secure, and that having it primarily charged on the rents of certain specified houses did not impair her right to an account for that purpose. There is not a word in the petition or the decree to question the validity of the settlement.

This detailed statement of the facts is made necessary by the different view we take from the auditor and the court below of the inferences to be drawn from them.

A settlement thus made with the assistance of counsel after full investigation, and benefits acquired, accepted and retained under it, is binding, and a complete bar to further claim, unless upon the clearest and most convincing proof that it was procured by fraud. There is no room for question about the law. A widow is entitled to a full and fair opportunity of examination, and information about the estate before she is bound by an election to take under a will in preference to her rights under the law. And in such cases perhaps even more strictly than in most others, the rule is applied that fraud vitiates everything it touches. The auditor enforced it with at least doubtful propriety with regard to the agreement of July, 1886. But that was the utmost extent to which any view of the executrix’s conduct should have gone. There is no case nor any principle to justify allowing the widow to play fast and loose, in accordance with her whim or her interest, with the settlement of 1887, to get and keep the advantages under it, and then repudiate it after other rights had been affected or the situation changed in reliance upon her acquiescence. It is not necessary nor desirable to cumber these pages further with the details of the evidence. The auditor bases his finding of fraud on the part of the executrix to some extent on the undervaluation of the real estate (though he admits that that was a mutual mistake of the parties and the counsel) but chiefly on the failure to include in the account and the suppression of information about certain personal property including a number of mortgages which had formed a large part of the testator’s estate. But we do not see any evidence of fraud on the part of the executrix in this connection. The property was not included in the account because the executrix claimed it as her own, and there was no suppression of information because her claim to it was openly made all the time, was well known to the widow and her counsel, was only faintly resisted if not really acquiesced in by them, was a fair subject of compromise, and the evidence tends to show that it was so considered and included in the settlement. Only a harsh view of the executrix’s conduct could justify the setting aside of the agreement of 1886 made by the widow herself but as to the settlement of 1887, made by counsel after prolonged examination, acquiesced in, and benefits secured and retained under it, no tenable view brings the evidence anywhere near to the standard required to disturb it.

In the view we take, it is not necessary to discuss the title of Mrs. Brundage to the mortgages at any length. It is sufficient to say that we do not concur in the conclusions reached by the auditor and the court below. The gift by her father to Mrs. Brundage was completely executed, and the title vested in her. It could only be divested by evidence of revocation and redelivery sufficient to prove a gift in the first instance. There was no evidence rising to this standard. The assignment of the mortgages was not destroyed or cancelled, but it and the mortgages themselves were apparently held under the joint possession and control of father and daughter to satisfy various scruples attributed to the former, but without any sufficient evidence that the daughter meant to surrender her whole right and redeliver exclusive possession. Without that there was no executed gift from the daughter which would revest the title in the father.

The auditor and the court below have intimated rather than held that the gift of the mortgages by Young to his daughter, even if not revoked, would be void against the widow as in fraud of her rights. It is true that a married man’s dominion over his personal property, ample as it is, will not sustain a fraudulent gift of it in contemplation of death or to take effect upon death, to defraud his wife’s statutory rights as widow: Lonsdale’s Est., 29 Pa. 407; Hummel’s Est., 161 Pa. 215. But the fraudulent intent is the indispensable foundation for any such limitation on his control: Pringle v. Pringle, 59 Pa. 281; Dickerson’s Appeal, 115 Pa. 198; and of that there is not a scintilla of evidence in this case. On the contrary the gift was openly made, his purpose to do something of the kind was indicated in his will made a year and a half before his death, and the subject was freely discussed by him with his wife, according to her own testimony. Fraudulent intent is not evinced in that way.

The decree for an account made November, 1889, has been quoted, and as already said the ground on which it was based was the widow’s interest to see that her annuity under the will was secure. Nothing in the decree or in the petition on which it was made required an accounting on any other ground. As soon as that single fact was made apparent, the proceeding should have ended. The petitioner had no further interest in the estate, and there was no one else demanding account or distribution. Yet this account so ordered for this specific and limited purpose was turned into a general overhauling of the whole administration of the estate, and the establishment of the widow’s right to claim against the will as if it had been promptly asserted, and no agreement or settlement stood in the way. So expanded the inquiry was spun out for more than eleven years. It was a serious perversion of the decree, and a violation of the accountant’s rights for which the petitioner must bear the burden.

The decree is reversed and the record remitted with directions to discharge the executrix from any further accounting up to this date. All costs to be paid by the appellee, Mary Young.