Fleming v. Shannon

On June 29, • 1955, plaintiff, LaVera Fleming, filed a complaint in *756assumpsit against Eva D. Shannon, to collect the sum of $1,000, which it is alleged decedent gave to defendant for the purpose of paying decedent’s funeral and burial expenses. Plaintiff brought this action as executrix of the estate of James M. Dailey, deceased. Defendant filed an answer denying that the sum of $1,000 was so given to her by decedent. In paragraph 2A of the answer, it is alleged: “In further answer to paragraph two the defendant avers that the appointment of the plaintiff as executrix aforesaid was procured by the plaintiff in probating a fraudulent will and known by the plaintiff to be fraudulent and suggests this action is improperly brought as the right of the plaintiff to act as executor has not yet been determined.”

Following this, plaintiff filed preliminary objections in the nature of a motion to strike paragraph 2A of the answer, contending that the right of plaintiff to sue as executrix could not be questioned in this proceeding despite the fact that an appeal from the decree of probate of the will of decedent is presently pending.

The paragraph in issue should be stricken. Section 208(c) of the Register of Wills Act of June 28, 1951, P. L. 638, art. II, sec. 208, 20 PS §1840.208c provides:

“Effect of Appeal. No appeal from a decree of the register shall suspend the powers or prejudice the acts of a personal representative to whom letters have been granted.”

It is clear, therefore, that defendant cannot successfully in the instant proceeding attack the authority of plaintiff to sue.

For the reasons before set forth and considering the fact that defendant neither filed a brief nor appeared at the argument, we make the following

Order

And now, September 30, 1955, paragraph 2A of defendant’s answer is ordered stricken from the *757record. Defendant’s answer in all other respects is permitted to stand as filed.