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HomeMy WebLinkAbout11-14-78 IN THE MATTER OF THE ESTATE ) ORPHANS' COURT DIVISION ) ) COURT OF COMMON PLEAS OF ) ) CUMBERLAND COUNTY, PENNSYLVANIA OF JOHN W. ELLENBERGER, AN ALLEGED INCOMPETENT PETITION TO ADJUDICA TE A PERSON INCOMPETENT AND TO APPOINT A GUARDIAN FOR HIS ESTATE TO THE HONORABLE, THE JUDGES OF SAID COURT: The Petition of Robert M. Ellenberger respectfully represents: 1 . Your petitioner, Robert M. Ellenberger, is the brother of John W. Ellenberger, the alleged incompetent. 2. John W. Ellenberger, the alleged incompetent, is 55 years of age, and his residence is at No. 3310 Trindle Road, Camp Hill, Cumberland County, Pennsylvania. Presently he is, and has been, a patient at the Veterans Administration Hospital, Coatesville, Pennsylvania, since March 24, 1947, having gone there from Harrisburg Hospita I. 3. John W. Ellenberger is a single man and has no issue or living parent. His only next-of-kin is his brother, the petitioner herein, Robert M. Ellenberger, of No. 3310 Trindle Road, CaOlp Hill, Pennsylvania. 4. As far as your petitioner can determine, the gross value of the Estate of John W. Ellenberger which would be tumed over to a guardian would be about $17,000 .00, consisting of accounts in CCNB Bank NA in the name of Hilma M. Ellenberger, the late mother of John W. Ellenberger, for or in trust for him, totaling about $8,700.00, including accrued interest on the savings account, and also consisting of accumulated income of about $8,300.00 from an inter vivos trust established by Dr. John Wesley Ellenberger, the late grandfather of said John W. Ellenberger, of which trust National Central Bank is one of three trustees. Not included in the gross value is an account of about $35,000.00 held by the three testamentary guardians of said John W. Ellenberger under the Last Wi II 1."'5 .. " ~.{'. -, g':11 - 1 - and festamentary trust of Dr. John Wesley Ellenberger, and representing income from said trust, of which Dauphin Deposit Bank and Trust Compony is one of three testamentary trustees and guardians. Also not included in said gross value are two life insurance policies issued by New York Life Insurance Company on the life of soid John W. Ellenberger which have lapsed, of which policies his deceased porents were beneficiaries. The income of said John W. Ellenberger is about $4,000.00 a year, not including any income from said testamentary trust which is poid to the testamentary guardians, and not including any Social Security poyments which have not been poid for several years. 5. John W. Ellenberger was a member of the United States Army and is not currently receiving any benefits from the United States Veterans Administration because he has accumulated benefits of $1,500.00, but as above stated, is a potient at Veterans Administration Hospital, Coatesville, Pennsylvania. 6. John W. Ellenberger received a Section 8 Discharge from the U. S. Army on March 11, 1944, due to his diagnosed psychosis. On May 31, 1950, he received a pre-frontal leukotomy and has been since classified as a "quiet psychotic". He is unable to manage his property, is liable to dissipote it, and to become the victim of designing persons, because of his mental infirmities. 7. The name and address of the proposed guardian is his brother, your petitioner, Robert M. Ellenberger, No. 3310 Trindle Road, Camp Hill, Pennsylvania, whose only possible adverse interest is as John's sole next of kin. In the event your Honorable Court would not wish to appoint Robert M. Ellenberger as guardian, then your petitioner proposes the Dauphin Deposit Bank and Trust Compony, having offices in Carlisle and Harrisburg, Pennsylvania, os the proposed guardian. The Dauphin Deposit has no conflict of interest, but is one of three trustees in said testamentary trust in which John has an interest and one of three testamentary guardians of John's receipts therefrom. There are attached hereto written consents of Robert M. Ellenberger and of the Dauphin Deposit Bank and Trust Compony to their appointment as guardian for John W. Ellenberger in the event your Honorable Court should appoint either of them as such guardian. . @?H 1;" ,tJ\. -2- 8. On October 17, 1968, the Orphans' Court of Dauphin County, in proceedings entered to No. 704, Year of 1963, considered said John W. Ellenberger an incompetent beneficiary, since he 'MlS committed to the Harrisburg State Hospital for treatment as a mental patient and transferred to the Veterans' Hospital at Coatesville, where he remained. Although he was a resident of Cumberland County, Pennsylvania, the Dauphin County Court assumed jurisdiction since the problem before it involved John W. Ellenberger's share of the income from two trusts which had their situs and were administered in Dauphin County, Pennsylvania, both having been created by his grandfather, Dr. John Wesley Ellenberger, a resident of Dauphin County, whose Estate was settled in said County. Said Court ordered that part of John W. Ellenberger's share of the income from said trusts be paid to his Mother, Hilma M. Ellenberger, a resident of Cumberland County, Pennsylvania, who died on February 19, 1977. A copy of the Opinion and Order of Court in said proceeding are hereto attached. Otherwise, no other Court has ever assumed jurisdiction in any proceeding to determine the competency of John W. Ellenberger nor has any guardian heretofore been appointed for him. WHEREFORE, your petitioner prays that a citation be issued, directed to John W. Ellenberger, the alleged incompetent, to show cause why he should not be adjudged an incompetent and Robert M. Ellenberger or Dauphin Deposit Bank and Trust Company be appointed guardian of his estate, in accordance with the provisions of Section 5511 of the Pennsylvania Probate, Estates and Fiduciaries Code, the Act of 1972, P. L. 508, as amended, 20 PS, sec. 5511, and Rule 14 of the Orphans' Court Rules. Petitioner 1'-.. 8""} ," '," . '>.' ~ ~~;: ~-. ., ' , :;.~' <. - 3 - 'If IN THE MA TTER OF THE : IN THE ORPHANS' COURT OF DAUPHIN COUNTY, PENNSYLVANIA ESTATE OF JOHN WESLEY ELLENBERGER, DECEASED No. 704, Year of 1963 OPINION BY THE COURT: We have before us separate petitions of the trustees of two trusts for authorization to pay a portion of the income distributable to a now incompetent beneficiary of the trusts to his mother. We will address OUr- selves herein to both petitions and will dispose of them together. After hearing in the matter, those facts which are pertinent to our inquiry appear as follows: Both trusts were created by John Wesley Ellenberger, now deceased, the grandfather of the incompetent beneficiary. One trust was created in his will, the terms of which directed that" the income was first to be paid to his son, Robert Baskin Ellenberger, and thereafter to Robert's. children, then living, and their descendants. The second is an inter vivos trust, by a deed dated April 3, 1926, the provisions of which directed the payment of income after the death of settlor's son, Robert Baskin Ellenberger, to his children and their issue in a manner similar to that which was provided in the testamentary trust. On November 13, 1967, Robert Baskin Ellenberger di....d, leaving as issue t\VO sons, the incompetent, John W. Ellenberger, '1I and his brother, Robert. John W. Ellenberger, the incompetent beneficiary, is presently forty-five years of age. On December 2. 1944, he was committed to the Harrisburg State Hospital for treatment as a mental patient and on March 27. 19.;7 was transferred to the Veteran's Hospital at Coatesville where he has , . remained until the present time. He will probably require hos pitalization or nursin" home care for the remainder of his life. The Veteran's Administration " presently furnishes the hospitalization. medical needs and maintenance of the incompetent. In addition. he receives monthly social security payments of $55. 00 and has a bank balance in excess of $1,100; 00. His exp"nses are limited to $250.00 to $300.00 a year for clothing and personal items. There are no debts or claims against either the incompetent or the trusts: In 1967, the income from the testamentary trust was $4.757.00 while the inter vivos trust produces approximately $2,200.00 a year. Thus. the total of the incom- petent's one half share from both trusts is approximately $3,478.50 a year. The incompetent's widowed mother. Mrs. Hilma M. Ellenberger, who is seventy-five years old, suffers from numerous ailments mostly attrib- utable to her advanced age. She has heavy medical bill~. subscribes to a special diet, and needs outside help with her housewo'rk. Her. income is about $4,900.00 a year, but her total living and household expenses approximate $7,900.00 a year. In the five months prior to the trustee's petiti'on. Mrs. Ellenberger's other son. Robert, contributed $36.00 a month to his mother's SUpport. -2- .' ~'-'."'-'."'---.'---', -... ( It is suggested in the petitions that all but $250.00 of the trust income presently payable to John W. Ellenberger should be paid, instead, to hilI mother for her care and maintenance under the provisions of the Mental Health Act of 1957, P.L. 794, 50 P.S. 3643. We note that this section is expressly applicable only where no guardian has been appointed for the estate of the incompetent. We note further that Item Eight of settlor's will provides that the trustees named therein shall "act as testamentary guardians for any beneficiary. .. (who) may not be competent to act." We are satisfied that this testamentary designation renders the above section 3643 inapplicable to the instant case. We are convinced, however, that some distribution of trust income may nevertheless be permitted in the case at hand pursuar.~ to the authority contained in the Mental Health Act of 1957, P.L. 794, 50 P.S. 3644, which provides in part: "The court, for cause shown, may authorize or direct the payment or application of any or all of the income or principal of the estate of"an incompetent for the care, maintenance or education of the incompetent, his spouse, children or those for whom he was making such provision before his incompetency. .. ." Under this Section, a distribution of income from the estate of an incompetent may be authorized or directed by the court if first, cause can be shown, and second, the suggested recipient is either the incompetent, his, spouse or child, or one for whon, he was making provision prior to his incompetency. Vye are satisfied that both requirements can be met in the record before us. Mrs. Ellenberger is a woman of advanced age and has recently been de,nivcd .) -3- ~ of a major sourCe of support by reason of the death of her husband. In addition, her heavy medical and household expenses place an undue burden ;1' on her limited income. :;econdly, the record establishes that prior to his incompetency, John W. Ellenberger was providing a measure of support in order to maintain his mother in her own home, a situation which could reasonably have been expected to continue but for his ensuing incapacity. Having determined that a present distribution of income to the mother may properly be made, we must next determine what portion of the income may be so distributed consistent with the needs of the incompetent beneficiary. Presently, and so long as John W. Ellenberger remains a patient at the Veteran's Hospital his needs, as established in our record, will be limited to approximately $25. 00 a month for personal and clothing inci- dentals. However, the record also indicates that there is a great likelihood that sometime in the future it will be necessary to transfer him to a private nursing home where his expenses will be increased ~onsiderably. In light of this contingency, we will not permit any distribution of income to Mrs; Ellenberg which will leave her son with only so much money as is necessary to sustain him in his present circumstances. We remain mindful that in matters such as this our primary responsibility is to see to the future as well as the present best interests of the incompetent. Accordingly, we make the following ORDER -/l; And.now this 17 ~day of October, 1968, the petitions of the trustees for leave to make distributions from the trust income of John W. Ellenberger, incompetent, are hereby granted, subject to the following -4- condition: So long as John 'vV. Ellenberger, the incompetent beneficiary, remains a patient at a United States Veteran's Hospital, the National Bank & 'If Trust Company of Central Pennsylvania, Trustee of the inter vivos trust created by John W. Ellenberger, deceased, and the Dauphin Deposit Trust Company, Trustee of the testatmentary trust created by John W. Ellenberger, deceased, are authorized and directed to each pay to Hilma M. Ellenberger $50.00 per month, and in the event that John W.' Ellenberger, the incompetent beneficiary, is placed in a private nursing home, said Trustees are thereafter to each pay to Hilma M. Ellenberger the reduced amount of $25. 00 per month, said payments to continue indefintely during the lifetime of Hilma M. Ellenberger and so long as John W. Ellenberger remains entitled to income as a beneficiary under said trusts or until further order of court. '. ~.~~U~g. -5- .' IN THE MATTER OF THE ESTATE ) ) ) ) ) COURT OF COMMON PLEAS OF ORPHANS' COURT DIVISION OF JOHN W. ELLENBERGER, AN ALLEGED INCOMPETENT CUMBERLAND COUNTY, PENNSYLVANIA /-10 &" t .,.' 6'7;r (fl I C~',-r'1A1 rw PRELIMINARY DECREE AND NOW, this /clty of November, 1978, upon consideration of the --- within Petition, and on motion of Allen D. Smith, Attorney for the petitioner, IT IS ORDERED that a citation be awarded and directed to be served personally by an adult on John W. Ellenberger, the a lIeged incompetent, to show cause why he should not be adjudged an incompetent and a guardian of his Estate be appointed. Notice to be given by certified mail to the Director of the Veterans Administration Hospital, Coatesville, Pennsylvania, to the Chief Attorney of the Veterans Administration, V. A. Regional Office, Wilkes-Barre, Pennsylvania, and to the General Counsel, Social Security Administration, Baltimore, Maryland. Since the petitioner is the sole next of kin of said John W. Ellenberger, no notice need b~he next of kin. " ' /971 Returnable the / I V<- day 0 , 197 , at /: ~o f M., in Court J6. Room No.X, Cumberland County Court House, Carlisle, Pennsylvania. BY THE COURT: T~ A; ~/ \ \ / \ ~~..J E' ~~ J. -1 - _~. . ... o;~.; (....1 ~(..,...? IN THE l'JATTER OF THE ESTATE ORPHANS' COURT LIVISION : OF' JOHN W. ELLENBERGER COU"T OF' COMMON PLEAS OF' AN ALLEGED INCOMPETENT CmrnERIJ\ND COUNTY, PENNSYLVJ\NIA NO. 619 Orphans' 1978 CI'1'J,TIUN WE COMMAND, you that laying aside all business and excuses whatsoever, you be and appear in your proper person before the Honorable Judges of the Common pleas Court, Orphans' Court Division at a session of the said Court t~ere to be held, for the Coo nty of Cumber land t.o show cause why he shou Id not be adjudged anmcompetent and a guardian of his Estate be appointed. Notice to be given by certified mail to the Director of the Veterans Administration Hospital, Coatesville, Pennsylvania, to the Chief Attorney of the Veterans Administration, V.A. Regional Office, Wilkes-Barre, Pennsylvania, and to the General Counsel, social Security Administration, Baltimore, Maryland. since the petitioner is the sole next of kin of said John W. Ellenberger, no notice need be given to the next of kin. Returnable the 11th day of January, 1979, at 1:30 P.M., in Court Room No.2, C'Jmber land County Court House, Carlisle, Pennsylvan ia. witness my hand and official seal ofcrfice at carlisle, Pennsylvania this 15th day of November, 1978. .~2.~ Clerk of orphans' Xourt ~'Vision Cumberland county~P8. Car lisle ,Penna. My Comm. Exp. 1st. Mon.Jan.1982.