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Eskandani v. Phillips

OPINION FILED JUNE 30, 1975.

HOLLY ESKANDANI ET AL., APPELLEES,

v.

MAE PHILLIPS, APPELLANT.



MR. JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 24, 1975.

Respondent, Mae Phillips, appealed from the order of the circuit court of Du Page County entered upon a petition filed pursuant to Supreme Court Rule 204(b) by Dr. Hugh R. Gilmore, William J. McFate and C.A. Perry, executors of the estate of respondent's deceased husband, and Holly Eskandani. The circuit court ordered that respondent appear before petitioner, Holly Eskandani, a notary public, for deposition, that she submit to a medical examination, and that, upon 10 days' notice to respondent's counsel, attorneys for petitioners be permitted to take the depositions of certain designated individuals who are residents of Illinois. The appellate court, holding that the order was not final and appealable, dismissed the appeal. We have allowed respondent's petition for leave to appeal.

Dr. Arthur Phillips, a retired professor of medicine at the University of Pennsylvania and a resident of Emlenton, Venango County, Pennsylvania, died testate on September 26, 1974, leaving an estate valued at approximately $2,500,000. His will was admitted to probate in the Orphans' Court division of the Court of Common Pleas, Venango County, Pennsylvania.

Dr. Phillips left no surviving descendants. At the time of his death, his wife, the respondent here, was confined to Grove Manor, a convalescent home in Grove City, Pennsylvania. She is now 92 years of age and in poor health, suffering from, among other things, a condition diagnosed as cerebral arteriosclerosis. She has no close relatives in Pennsylvania.

Dr. Phillips's will, after making a number of specific bequests, provides for the creation of two trusts of which the executors are appointed trustees. The first trust is a marital trust with the income to respondent during her life; a general power on her part to invade principal to provide for her maintenance, care and support in such manner as she deems fit; a comparable power to invade on the part of the trustees in the event of her incapacity; and a power of appointment in her to dispose of this trust by will at her death. The will also creates a "unitrust" for most of the remainder of the estate with provisions for three separate funds out of which annuities are to be paid to respondent and others. At her death, the unitrust is held for the benefit of charity, as is the marital trust in the event of her failure to exercise the power of appointment. In addition to benefits under the will, respondent received approximately $230,000 in cash from a joint checking account in Philadelphia. No provision is made in the will for any relative of respondent.

The principal assets of Dr. Phillips's estate are stocks and bonds believed to be in five safe deposit boxes located at the Girard Bank in Philadelphia. These boxes are in the joint names of Dr. Phillips and respondent and only she, or, if mentally incapacitated, her guardian, has access to them. The executors do not have access to the boxes, and it has not been necessary to inventory their contents. Other property of Dr. Phillips and respondent is believed to be in a safe deposit box at a bank in Emlenton, and jewelry and other property of respondent is believed to be in a safe deposit box at another Philadelphia bank. Other property owned by respondent in Pennsylvania includes household furnishings appraised at $6,500, her interest as an income beneficiary (receiving approximately $23,000 annually) under a trust estate known as the Samuel W. Phillips Trust, and her interest in her husband's estate.

Respondent's sister, Mrs. Edith Keen, and the sister's daughter, Mrs. Elaine McHugh, reside in Glen Ellyn, Du Page County, Illinois. Approximately five weeks after Dr. Phillips's death, Mrs. Keen and Mrs. McHugh arranged for respondent to be moved from the Grove Manor convalescent home in Grove City, Pennsylvania, to the Americana Nursing Center in Naperville, Du Page County, Illinois, where she is now a patient. The executors have assumed financial responsibility for her care at the nursing center.

On November 22, 1974, the executors of Dr. Phillips's estate filed a petition in the Orphans' Court in Venango County, Pennsylvania, asking that respondent be "judged an incompetent and a guardian of her estate appointed." The petition does not pray for the appointment of a guardian of her person. On that same day, pursuant to the order of the Orphans' Court, petitioners sent notice of the petition and the hearing to be held thereon, by certified mail, to respondent at the nursing center, and to Mrs. Keen and Mrs. McHugh at their residence address in Glen Ellyn. Thereafter, pursuant to further order of the Pennsylvania court, a citation, with a copy of the petition and related orders and papers, was personally served on respondent at the nursing center in Naperville requiring her to file an answer to the petition and show cause why she should not be declared an incompetent.

On December 10, 1974, there was filed in the probate proceedings in Pennsylvania an "Election to Take Against the Will." The election was executed by respondent and acknowledged before a notary public on December 2, 1974. The effect of this election is to entitle respondent to distribution outright of one half of Dr. Phillips's net estate in lieu of any other interest in the estate.

On December 20, 1974, the executors filed their petition to revoke and set aside the "Election to Take Against the Will." In this petition it is alleged, inter alia, that respondent was incompetent, did not understand the legal effect of the election and "was influenced by others for their own benefit." On the same day the Orphans' Court ordered the issuance of a citation directing respondent to file an answer to the petition and to show cause why her election to take against the will should not be revoked and vacated. The order, as requested in the petition, authorized the taking of her deposition at the nursing center in Naperville and authorized Dr. J.B. Johnston and Dr. J.B. Markam, physicians practicing in Venango County, or either of them, to examine her at the nursing center. On December 26, 1974, the citation, together with a copy of the petition to revoke and related papers were personally served on respondent at the nursing center in Naperville. On December 27, 1974, on petition of the executors, the court appointed an attorney as guardian ad litem for respondent in both the guardianship and probate proceedings.

On January 3, 1975, a Pennsylvania law firm appeared on behalf of respondent and filed four separate pleadings each entitled "Preliminary Objections," attacking the appointment of the guardian ad litem in both the guardianship and probate proceedings, and seeking the dismissal of both the petition for the appointment of a guardian and the petition for revocation of the election to take against the will. Each objection challenged the court's jurisdiction of the person of respondent, and in three of them it was requested that all proceedings be stayed "pertaining to the incompetency of Mae Phillips until the question of the jurisdiction of this court is determined." The objections also challenged the jurisdiction of the Orphans' Court over the subject matter of the petitions to appoint a guardian and to revoke and set aside the election to take against the will.

On January 9, 1975, the Orphans' Court held a hearing on the preliminary objections. Illinois and Pennsylvania counsel appeared for respondent and the court heard testimony and argument concerning its jurisdiction. The hearing was not completed and was adjourned to February 3, 1975.

On January 16, 1975, on petition of the executors in the guardianship proceeding, the Orphans' Court ordered an examination of respondent by Dr. J.B. Johnston, a psychiatrist, to be conducted at the nursing center in Naperville. The following day, in both the guardianship and probate proceedings, notice was served on the attorneys for respondent advising them of the date, time and place she would be examined by Dr. Johnston, and her deposition taken. The notice further advised that the depositions of five members of the staff of the nursing home at Naperville would be taken that same day and that the deposition of Mrs. Keen, Mrs. McHugh and the Illinois attorney for respondent would be taken on the following day.

On January 21, 1975, pursuant to Rule 204(b) petitioners filed a four-count petition in the circuit court of Du Page county. In counts I and IV, petitioner Eskandani, a notary public and court reporter, seeks an order directing the issuance of subpoenas to take the deposition of respondent and eight other witnesses for use in the Pennsylvania probate proceeding (count I) and the guardianship proceeding (count IV). In counts II and III, the executors, as petitioners, seek an order for the examination of respondent by Dr. Johnston for use in the probate proceeding (count II) and in the guardianship proceeding (count III). The written consent of the guardian ad litem appointed by the Orphans' Court is incorporated in the petition, and he joins with the petitioners in the prayer for relief. Attached to the petition as exhibits are the letters of three physicians and the affidavit of petitioner McFate stating that in their respective opinions respondent is not competent to handle her affairs. On the same day, pursuant to leave, the petition was amended in a manner not here material.

On January 24 further preliminary objections were filed in the Orphans' Court attacking the order of January 16, 1975, for the physical examination of respondent and the notice to take depositions in the guardianship proceedings. On the same day similar further preliminary objections were filed in that court attacking the order of December 20, 1974, for the physical examination and ...


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