The problem before the court is the interpretation of a will and the propriety of a certain grant of letters of administration. The controversy requires consideration of section 6 of the Uniform Declaratory Judgments Act of June 18, 1923, P.L. 840, as amended, 12 P.S. §836, and a relevant section of the Fiduciaries Act of June 30, 1972, P.L. 508 (no. 164), 20 P.S. §3512. The facts.are as follows:
Emerson I. Kehler died testate on April 25, 1975. The will directed that the entire estate go to his brother, Ralph Kehler, and his sisters, Viola Welker, Ada Shartel and Gertrude Krafp. All of his above-named siblings were named executors. Ralph Kehler predeceased Emerson. Viola Welker, Ada Shartel and Gertrude Krafp, after signing a renunciation, requested the Register of Wills to appoint
On May 20, 1976, Ethel Kehler Chupp filed a petition for declaratory judgment raising the questions of her entitlement to a one-quarter share of the residue of the estate and whether she had a right to a grant of Letters of Administration c.t.a. superior to any right of Lawrence E. Welker. Together with the personal representative of Gertrude Krafp — the said Gertrude Krafp having died in the interim — and Ada Shartel, Ethel Kehler Chupp filed exceptions to the account raising the same questions presented in the petition for declaratory judgment, and the additional question of the ownership of certain bank accounts in the joint names of Emerson I. Kehler and Viola Welker. These bank accounts had been treated by the administrator c.t.a. as joint accounts with right of survivorship, and the proceeds thereof turned over to Viola Welker.
The administrator c.t.a. in response filed a motion to strike the petition for declaratory judgment asserting that petitioner may not have the disputed matter determined by such a proceeding. The administrator c.t.a. also filed a motion for the
“In any county having no separate orphans’ court division, . . . [i]f any party in interest shall object to the account, or shall request its reference to an auditor, the court, in its discretion, may appoint an auditor.”
The precise question before the court is whether 20 P.S. §3512 is such a special form of remedy for this specific type of case so as to preclude petitioner’s suit for declaratory judgment.
We start with the proposition that it is now the settled law of this Commonwealth that a suit for declaratory judgment will lie even where there exists another available remedy, whether legal or equitable, unless such remedy is a statute providing a special form of relief for a specific type of case: Friestad v. Travelers Indemnity Company, 452 Pa. 417, 306 A.2d 295 (1973). As counsel have correctly observed, the decisions of the Pennsylvania Supreme Court have been less than consistent on the problem of whether a declaratory judgment will lie where there is available another non-statutory remedy: Kariher’s Petition (No. 1), 284 Pa. 455, 131 Atl. 265 (1925): Nesbitt v. Manufacturers’ Casualty Insurance Co., 310 Pa. 374, 165 Atl. 403 (1933); Stofflet & Tillotsen v. Chester Housing Authority, 346 Pa. 574, 31 A.2d 274 (1943), returning to the Nesbitt position following the Von Moschzisker amendment created by Act of April 25, 1935, P.L. 72, sec. 1, as amended, 12 P.S. §836: Johnson Estate, 403 Pa. 476, 171 A.2d 518 (1961); McWilliams v. McCabe, 406 Pa. 644, 179 A.2d 222 (1962); Friestad v. Travelers Indemnity
An examination of the cases reveals no clear rule. In Lochrie’s Estate, 340 Pa. 145, 16 A.2d 133 (1940), the court rejected a petition for declaratory judgment stating that the jurisdiction of the Orphans’ Court had already attached since said petition was presented both after the filing of the account and after the appointment of the auditor. In the case at bar, while the account has been filed, the court has not yet appointed an auditor. In effect, the remedial machinery urged by the administrator c.t.a. has not yet been invoked. This point represents a crucial disparity between the problem at hand and the facts of Lochrie’s Estate.
Counsel for the administrator c.t.a. is correct in his assertion that in Gerety Estate, 349 Pa. 417, 37 A.2d 792 (1944), the same two questions were pre
In Johnson Estate, 403 Pa. 476, 479, 171 A.2d 518 (1961), the court faced essentially the same question as is presently at bar. Mr. Justice Jones framed the issue as such: “[d]oes the availability of this other remedy [audit of the trustee’s account and distribution in the Orphans’ Court] bar a declaratory judgment proceeding to construe and interpret this will?” The court held that a declaratory judgment could be granted even though there was another available remedy, i.e., the audit. Thus, the court in Johnson treated the statute permitting appointment of an auditor as merely an “alternative legal remedy” rather than a special statutory form of remedy.
A close examination of the facts in Johnson is helpful. A trust was created of testatrix’s residuary estate with income payable to two life beneficiaries. Upon the death of the survivor of said beneficiaries, 25 percent of the corpus of the trust was to be paid to a Florence Billmyer if “living at the time of distribution.” Florence survived but one of the life beneficiaries and her personal representative petitioned for a declaratory judgment
Section 6 of the Uniform Declaratory Judgments Act states in part: “Where, however, a statute provides a special form of remedy for a specific type of case, that statutory remedy must be followed. . . .” (Emphasis supplied); Acts of June 18, 1923, P.L. 840, sec. 6; April 25, 1935, P.L. 72, sec. 1; May 26, 1943, P.L. 645, sec. 1, 12 P.S. §836. Clearly, use of the jussive word “must” indicates that the legislature intended that no consideration be given to exceptional facts. Therefore, if the court in Johnson had seen appointment of an auditor as a special statutory form of remedy, then they would have been required by the dictate of the
Before one may take leave of Johnson, it is necessary to review the rough seas upon which it was cast. Less than a year after Johnson was decided, the high court overruled it sub silentio in McWilliams v. McCabe, supra. McWilliams in turn served as authority for Sheldrake Estate, 416 Pa. 551, 207 A.2d 802 (1965), which held that the appropriate remedy for determination of the percentage of trust income was by filing an account, and by implication the subsequent appointment of an auditor upon dispute, and not by a declaratory judgment proceeding. But Sheldrake was based upon the erroneous proposition “ ‘ “that a declaratory judgment proceeding is not an optional
Having illustrated that a declaratory judgment will lie, the next question is whether this court should entertain such suit. Of course, while this question is largely a matter of judicial discretion: Lifter Estate, 377 Pa. 227, 103 A.2d 670 (1954); the following elements must exist before such jurisdiction can be exercised: 1. all of the persons having any possible interest must be joined in the petition; 2. antagonistic claims must be present which indicate imminent and inevitable litigation, coupled with a clear manifestation that the declaration sought will be of practical help in ending the controversy: Lifter Estate, supra, at 229.
Both of the required elements for declaratory relief exist in this case. The salient point, we believe, is the efficient manner in which declaratory relief can settle the controversies at bar with one stroke with the least expenditure of time and money for the parties. We break no new ground by this course. There have been more than a few occasions where courts have used the declaratory judgment process to construe a will: Johnson Estate, footnote 5 at 482. Indeed, Mr. Chief Justice VonMoschzisker once stated that declaratory relief “is peculiarly appropriate to the orphan’s court, vested as it is with supervisory powers over the administration of decedents’ estates.”: Cryan’s Estate, 301 Pa. 386, 397, 152 Atl. 675 (1930). To the extent that factual questions are involved, de
In view of the foregoing, we enter the following
ORDER
And now, January 31, 1977, after hearing held and due consideration of counsel’s written and oral arguments, the motion of the administrator c.t.a. to strike the petition for declaratory judgment is hereby denied.