The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1902-12-27
AN OPINION IN
THE ZIEGLER CASE
It Was Handed Down Yesterday by
Judge A. A. Vosburg in the
Orphans Court

In the orphans court yesterday, Judge
A. a. NOsburg, handed down an opin-
ion in the matter of the estate of Eliza =
beth Ziegler, deceased, in which he or
ders that the question at issue be GER
titled to the court of common pleas for
a determination of the facts. Judge
Nosburg's opinion follows in part:
On October 9th 1907, Lizetta Rose and
Charles Rose, her husband, presented
their petition to this court setting forth
that Elizabeth Iiegler III her life time
took out two policies of insurance on her
life with the Prudential Insurance Com
pany OF America. for the aggregate sum
of 5000; that she gave in her lifetime
the said policies to the petitioners that
the decendent assigned to said petitioners
the said policies; that she delivered them
to the petitioners and that they paid the
premiums thereon until the death of the
testatriX; that the company paid the
amount of said policies to the executor
under the will of Elizabeth Ziegler, de-
ceased. and that he refused to pay over
the same, to the petitioners.
They therefore ask for an issue TO ne
certified to the court of common pleas
to determine the ownership of said insur-
ance fund. The executor filed an answer
to this petition denying the facts set
forth therein so far as they relate to the
assignment of the policies and claims
that the insurance money was the prop
erty of the estate of Mrs. Ziegler.
\ large amount of testimony has been
taken on each side. and while the estate
appears upon the record as the defendant,
the contest Is really between the petition
ers and the creditors of the estate as it
plainly appears by the evidence that Mrs.
Ziegler died insolvent. IT is not contend
ed that the orphans court has no power
to award an issue of this character if
the evidence warrants it.
The respondents contend that in the
first place there is no evident of gift
to Charles Rose and will state that this
contention is correct. If the gift was
made as claimed it was made by Eliza
beth Zeicler to her daughter. LiZctta
Rose. The respondents also claim that
the Orphans court has no jurisdiction
to determine the ownership of the pro-
ceeds of these insurance policies and that
the petitioners should be required to pre-
sent their claim in some other form.
Judge Vosburg says he is satisfied
that the Orphans court has jurisdiction
to award an issue if the evidence war
rants it and therefore orders that an
issue be certified from the orphans
court to the court of common pleas of
Lackawanna county to be submitted to
a jury for the determination of the fol-
lowing question::
"Dld Elizabeth Ziegler in her lifetime
assign or give to LiZetta Rose two poll
cies OF insurance, in the Prudential In
surance Company of America, No. S5i973
and 5636593?" In this issue let I.izetta
Rose stand as plaintiff, and August j..
Schneider, executor under the will of
Elizabeth Ziegler, deceased, stand as de-
fendant. 1t is further ordered that all
proceedings in the matter OF the dis
tribution of the estate OF Elizabeth Zieg-
Ter. deceased, be stayed until the final
determination of the question thus sub
mitted to the court of common pleas for
the finding of a jury; but this order is
not to affect the hearing of exceptions to
the executors account, except as TO lnat-
ters involved in this issue.
1t seems proper 10 state in this con-
nection that August Il. Schneider the cx-
ecutor has acted in perfect good faith
and with the utmost propriety so far rs
tho evidence goes. in caring for the in
tercsts OF this estate for carefully at
tending to his duty in the collection of
this insurance and in claiming it for the
estate In no aspect Of the case there
fore can he be held liable for any of the
costs and expenses incident To this con-
troVersy. When this issue shall have
been finally determined in the court of
common pleas and certified back to or
phans' court, let the parties in interest
bring the matter before the orphans
court for final determination.
In the estate of John Mason, Judge
Nosburg handed down an opinion dis
missing and over-rulng the demurrer
filed to the answer OF the executors,
and made AN order fixing Monday,
December eth, at 10 Il. m, for the hear
ing.