# Johnson Estate > Supreme Court of Pennsylvania · May 2, 1961 · 403 Pa. 476 URL: https://www.frixlaw.com/law-library/cases/9533149 ## Case - **Full name:** Johnson Estate - **Court:** Supreme Court of Pennsylvania - **Decided:** May 2, 1961 - **Citations:** 403 Pa. 476; 171 A.2d 518; 1961 Pa. LEXIS 491 - **Precedential status:** Published - **Opinion:** Dissent by Bell - **Judges:** Jones, Bell, Musmanno, Cohen, Bok, Eagen - **Cited by:** 29 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Overruled implicitly by McWilliams v. McCabe, 406 Pa. 644 (1962). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9533149 ## Opinion text Dissenting Opinion by Mb. Justice Bell: Testatrix, Harriet I. Johnson, died on December 19, 1950. She left a will in which she bequeathed 25% of the corpus of her residuary trust estate to Florence E. Billmyer, payable to her upon the death of the last survivor of Emma J. Jacoby and Samuel O. Jacoby, life beneficiaries of the trust, if Florence was then living. Samuel 0. Jacoby, one of the life tenants, died in 1955;• Emma J. Jacoby, the other life tenant, is still living; Florence E. Billmyer, the contingent remainderman, died in 1957. Florence Billmyer’s executor filed a petition in the Orphans’ Court of Clarion County — not the usual petition for a citation (or rule) for an account, but — for a declaratory judgment under §4 of the Uniform Declaratory Judgments Act of June 18, 1923, * as amended April 25, 1935 ** and May 26, 1943 *** Petitioner averred “by reason of the provisions of the [Harriet I. Johnson’s] Will a one-fourth interest in the trust estate vested in his decedent on July IS, 1951, when distribution of the residuary estate was made [by the executor to Miss Johnson’s testamentary trustees], she [Florence Billmyer] then being living, subject to the rights of Emma J. Jacoby the surviving life beneficiary in said trust. “That your Petitioner is advised that Bucknell University, Lewisburg, Pennsylvania, whose Trustees are designated as contingent beneficiaries in the aforemen *492 tioned paragraph Eleventh (c) of the Will of Harriet I. Johnson, contend that the interest of Petitioner’s decedent in the trust passed to it by reason of her death on August 7, 1957. “That by reason of such contention on the part of Bucknell University there is presently antagonistic claims indicating imminent and inevitable litigation and that the Declaratory Judgment herein prayed for will be of practical help in any such controversy between your Petitioner and Bucknell University.” The trustees of Bucknell University filed preliminary objections to the petition. From the Order of the Orphans’ Court sustaining the preliminary objections, the executor of Florence Billmyer’s will has appealed. The Will of Harriet I. Johnson pertinently provides: “Eleventh: ... (c) Upon the death of the last survivor of my sister, Emma J. Jacoby, and my brother, Samuel O. Jacoby, this trust shall terminate * and end and all assets of every nature and kind both real, personal and mixed, shall be converted into cash within one year, or as soon thereafter as can reasonably be done, and the net proceeds, after deduction of the trustee’s commission, paid over to the following persons in the following amounts: . . . “Twenty-five per centum (25%) thereof to the niece of my late husband, F. R. Johnson, Florence Billmyer, if she shall be living at the time of the distribution of my residuary estate ” The will further provides that in the event Florence Billmyer should not be living at the time of distribution of testatrix’s residuary estate, Florence’s share should be paid to the trustees of Bucknell University. Preliminary objections admit as true all facts Avhich are clearly and well pleaded but not the pleader’s con *493 elusions or Ms averments of law: Robinson v. Philadel phia, 400 Pa. 80 , 161 A. 2d 1 ; Fawcett v. Monongahela Railway Co., 391 Pa. 134 , 137 A. 2d 768 ; Gardner v. Allegheny County, 382 Pa. 88 , 114 A. 2d 491 ; Narehood v. Pearson, 374 Pa. 299 , 96 A. 2d 895 ; cf. also: Ross v. Metropolitan Life Insurance Co., 403 Pa. 135 , 169 A. 2d 74 . In Keystone Insurance Company v. Warehousing & Equipment Corporation, 402 Pa. 318 , 165 A. 2d 608 , the law with respect to declaratory judgment proceedings was clearly reiterated (pages 320-321) : “Notwithstanding the broad language of the Declaratory Judgments Act, they are not, and practical experience and realities have demonstrated that they should not be a matter of right, but a matter initially for the sound discretion of the lower 'Court. In the leading case of Eureka Casualty Company v. Henderson, 371 Pa. 587 , 92 A. 2d 551 , this Court, speaking through Chief Justice Steen, said (pages 591-592) : ‘We start with the fundamental proposition that whether or not a court will take jurisdiction of a petition for a declaratory judgment or decree is purely a matter of judicial discretion. . . . This discretionary character of the judicial process in such actions has been consistently proclaimed by this court ever since declaratory judgments first came into being: Kariher’s Petition (No. 1), 284 Pa. 455, 471 , 131 A. 265, 271 ; Carwithen’s Estate, 327 Pa. 490, 494 , 194 A. 743, 745 ; Capital Bank and Trust Company’s Petition, 336 Pa. 108, 111 , 6 A. 2d 790, 792 ; Kahn v. William Goldman Theatres, Inc., 341 Pa. 32, 35 , 17 A. 2d 340, 341 ; Schoenbrun v. Nettrour, 360 Pa. 474, 477 , 61 A. 2d 868, 869 .” The law was once again reiterated in Lifter Estate, 377 Pa. 227 , 103 A. 2d 670 . In Lifter Estate we allowed a declaratory judgment proceeding because the will contained conflicting provisions and a residuary gift to the Federation of Jewish Charities was extremely *494 doubtful because of tbe provisions and limitations with respect to the gift. Testator gave the income from his residuary estate to his wife for her life with a discretionary power in the trustees to expend principal in her behalf. His wife survived him. The will then provided that upon the death of his wife the trust should terminate and the principal should be paid over and distributed to 17 persons or charities and the residuary estate to the Federation of Jewish Charities to erect a building, provided (a) such erection began within five years from the date of his death, and (b) that the Federation notify testator’s trustees of its acceptance of the bequest and (c) that the conditions attached thereto are met within 60 days from the date of testator’s death. There was a gift over if for any reason the Federation did not accept or meet all the conditions. The conflicting, confusing and litigation-producing provisions of the Lifter will made a declaratory judgment not only appropriate but vitally necessary. The Court, after quoting the law as set forth in Eureka Casualty Co. v. Henderson, supra, and Capital Bank and Trust Company’s Petition, supra, said (page 229) : “The facts in the instant case bring it within, the aforesaid requirements; the problems involved are so unusual and difficult, litigation was so imminent and inevitable, and the peril to the Federation was so great and immediate that we consider this to be an appropriate matter for a declaratory judgment.” The Lifter decision in principle rules the present case, but factually the two cases are very different. Miss Johnson’s will demonstrates, contrary to the petitioner’s averred conclusions, (1) that there is no imminent litigation, (2) that the problems are neither involved nor difficult, (3) that there is an adequate remedy for petitioner by use of customary Orphans’ Court procedures, (4) that there is no immediate peril or indeed peril of any kind to petitioner and (5) that there *495 are no exceptional circumstances which justify this proceeding. In Wirkman v. Wirkman Company, 392 Pa. 63 , 139 A. 2d 658 , we affirmed the action of the lower Court which had sustained preliminary objections to a petition for a declaratory judgment, thus denying the availability of the remedy. The petition for a declaratory judgment sought a declaration of petitioner’s rights under a contract with defendants; one of its terms provided for an arbitration under certain circumstances. An interpretation of this contract and the arbitration provision was what the petitioner sought. The Court said (page 66): “A declaratory judgment should not be granted where a more appropriate remedy is available. See Stofflet & Tillotson v. Chester Housing Authority, 346 Pa. 574 , 31 A. 2d 274 (1943); Borchard, Declaratory Judgments 302 (2nd ed. 1941).” When a Court has recently cleared up the confusion or uncertainty arising from prior decisions and has established a clear principle or standard, it seems to me most unfortunate to ignore or change these recent decisions and once again reopen the question and unsettle or change the existing law. This is exactly what the majority opinion has done. The pertinent authorities furnish additional reasons for the affirmation of the Order of the lower Court. It is clear as crystal that petitioner’s testator had only a contingent interest under Miss Johnson’s will and that that interest expired by the death of petitioner’s testator. Furthermore, petitioner’s claim— assuming she has any — can and should be properly raised at the audit of the testamentary trustee’s account when an account is filed upon the death of the last life tenant. This would be the appropriate time and place to raise the question which petitioner seeks to have determined now and in this unusual proceeding. *496 In Keefer Estate, 351 Pa. 343 , 41 A. 2d 666 , Mr. Justice Allen M. Stearns, speaking for a unanimous Court, said (pages 343-344) : “The question is whether a case for declaratory judgment is presented. “The controversy concerns the construction of a will. Decedent was the executor of his wife’s estate. Upon her decease he administered the estate and after filing an account made absolute distribution to himself. The husband died over three years after such distribution. Appellant, who claims under the wife’s will, contends vthat under its terms decedent did not possess an absolute estate in the residue, but possessed only a life estate. “In the present case the Orphans’ Court of Cumberland County . . . was in error in construing the will and decreeing distribution under the Uniform Declaratory Judgments Act of June 18, 1923, P. L. 840, 12 PS section 831, et seq., as amended. We pointed out in Gerety Estate, 349 Pa. 417 , 37 A. 2d 792 , that ‘the remedy under the Declaratory Judgments Acts is not an optional substitute for established and available remedies’ or ‘where another statutory remedy has been specifically provided’. The Orphans’ Court Act of June 7, 1917, P. L. 363, 20 PS section 2082, et seq., and the Fiduciaries Act, supra, direct precisely how a decedent’s estate shall be settled and distributed. “The appropriate place to pass upon the matters now in controversy is at the audit of the account which has already been filed, where all parties in interest will receive statutory notice and be given the opportunity to be heard.” In Straus’s Estate, 307 Pa. 454 , 161 A. 547 , this Court affirmed the dismissal by the Orphans’ Court of a petition under the Uniform Declaratory Judgments Act “on the opinion of Judge Gest,” who incidentally, was one of the greatest Orphans’ Court *497 Judges in the history of Pennsylvania. Judge Gest pertinently said (pages 457-458-459): “The question propounded in the petition is whether the late Frederick G. Nixon-Nirdlinger had vested one-third interest in each of the estates now held in trust for Laura and Alice for their lives, subject to be divested by the birth of issue to them, which issue should be living at the time of their respective deaths, or whether said one-third interest in the trust estates is contingent upon surviving said Laura and Alice, in which case his children would claim to be entitled if living at the deaths of Laura and Alice without their leaving issue. “Now, it is obvious that this question should not ordinarily be determined by a declaratory judgment. When Laura and Alice or either of them die, the account of the trustees will come before this court, and the rights of the remaindermen will then [be] ascertained. The Declaratory Judgment Act can only be invoked where a real controversy exists: Lyman v. Lyman, 293 Pa. 490 ; Sterrett’s Est., 300 Pa. 116 , and Cryan’s Est., 301 Pa. 386 , and the court will not decide future rights in anticipation of the event at which such future rights call for decision: Ladner v. Siegel, 294 Pa. 368 . What exceptional reasons are there for taking this case out of the general rule? The petition merely alleges ‘. . . the further fact that the proper ascertainment of such assets is necessary in the settlement of inheritance taxes with the Commonwealth of Pennsylvania and the United States Government, it is imperative to the interests of that estate that the question involved be determined. Many years may elapse before the present subsisting trusts terminate, and long before that period the right of the executors to appeal from any tax imposed on their interest in this estate, if any, would expire.’ Doubtless it would be more convenient for the executors to have us construe the will in advance, but this is by no means an adequate rea *498 son. The allegation that it is necessary in order that the estate may be properly appraised for taxation, affords no sufficient reason for our action. Under the Transfer Inheritance Tax Act of June 20, 1919, P. L. 521, the tax on the interest of Frederick G. NixonNirdlinger in the estate of Emanuel Straus, whatever it may be, will not be assessed until such interest vests in possession after the termination of the life estate. If the taxing authorities assess it now, the remedy is by appeal, and the taxing authorities of the Commonwealth and of the federal government are not before us asking for any decision on the question in futuro. If we allowed a declaratory judgment in this case, we might be asked in other cases to adjudicate the rights of the remaindermen in order that they might borrow of money lenders on their future interests, which it would not be pleasant to contemplate.” The aforesaid authorities clearly and unquestionably require the affirmation of the Order of the lower Court which dismissed the petition. Moreover, and in any event it is clear that there was no palpable abuse of judicial discretion by the Court below and consequently we must sustain that Court’s Order dismissing the petition. Cases, supra. There is still another reason, although none is necessary, why the petition for a declaratory judgment should be dismissed. To allow it in this case where it is clear that petitioner has an established and adequate remedy and there is no peril to petitioner’s claim nor any exceptional circumstances, would open wide the door to a myriad of declaratory judgment proceedings which would swamp our already greatly overburdened Courts. I would affirm the Order of the Orphans’ Court. P.L. 840, 12 PS §834. P.L. 72, §1. P.L. 645, §1, 12 PS §836. Italics throughout, ours. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9533149. Public record. Not legal advice.