"Hot" Property of the Dead

A recent Pennsylvania Commonwealth Court case addressed disposition of widely-dispersed, possibly stolen, property of a decedent. After the death, friends & family in possession of the property turned it in, but later made claim for its return. The case is Commonwealth v. Personal Property of Abendroth, 1527 C.D. 2006, decided 07/25/07 (PDF, 10 pages).

The case describes scenes reminiscent of those drawn by Charles Dickens in "A Christmas Carol", as introduced by the Ghost of Christmas to Come:

When the Ghost makes its appearance, the first thing it shows Scrooge is three wealthy gentlemen making light of a recent death, remarking that it'll be a cheap funeral, and they'd only go if lunch was provided. Next, Scrooge is shown the same dead person's belongings being stolen and pawned.

Perhaps it is the contrast of gross materialism to sudden mortality that allows us to characterize post-mortem fights over a decedent's property as either comic or chilling.

As to the chilling aspects, consider these past news reports regarding misappropriation of property owned by a decedent:

• "Dead man's neighbors admit stealing property" (09/16/07), posted by the Palm Beach Post — Four Port St. Lucie residents admitted Friday to stealing from the home of one of their neighbors just hours after he died, police said. Officers responded to a burglary call Thursday at the home of George Lippi, who had died earlier in the day, on Southeast Dival Avenue. According to a police report, officers found [four adults] in the back yard of Lippi's home carrying away a cast-iron cooking pot. * * * The suspects then admitted to entering the home without permission and taking Lippi's cooking pot, patio furniture and two firearms, police said. * * *

• "Mover And His Mother-In-Law Arrested For Stealing From Dead Man" (01/12/07), posted by Art Now Online -- In New York, a mover and his mother-in-law are about to spend some time in jail because of their decision to steal two black and white drawings by Pablo Picasso. The mover . . . was hired to take a dead man´s belongings from the Upper East Side apartment to a warehouse. Both drawings (a guitar and a mandolin) are worth more than US$60,000 and are part of the extensive art collection by William Kingsland, who died in March of last year, without a will. * * *

• "Caregiver, others steal dead man's credit card, go on spending spree" (06/16/04), posted by WKYC-TV Channel 3 (Northeast Ohio) -- A Parma Heights man died in February but police say his credit cards were kept alive by his Ukrainian-born caregiver and other Ukrainian immigrants. * * * Police started investigating the case when the family of Anthony Kaldoon noticed something strange going on. "Their deceased father's bank statement showed twenty-thousand dollars worth of purchases on his credit cards after he passed away," Captain Mark Sovey with the Parma Heights Police Department. Police eventually discovered another $30,000 of charges and his car missing from his Brandywine Road home, they say taken by his caregiver. * * *

• "Wider Inquiry Into Stealing From the Dead", by Ralph Blumenthal, published by The New York Times (02/03/88) -- New York State and city investigators, expanding their inquiry into thefts of property from the dead, seized accounting records yesterday from Public Administrators' offices in Brooklyn, Queens and the Bronx. * * * The searches, announced by the State Attorney General and the State Comptroller and carried out with the city's Investigation Department, marked a new phase of a lengthy undercover investigation into the city's five Public Administrators' offices. The offices manage the estates of people who die without properly executed wills. * * *

When property possessed by the decedent may have been stolen, we can focus more on the comic aspects of events.

In the Arbendroth case, property of Harvey had been disbursed before his death among five of his "family members or acquaintances":

Pursuant to a criminal investigation of Harvey for possession of stolen property, the Pennsylvania State Police (PSP) removed items largely of a musical nature from appellants’ residences via consensual searches.

All five appellants essentially testified that, upon Harvey’s return from Florida, he left the items at issue in their residences. Two appellants, John Pudish and Scheideler, testified that they started to sell some of these items on eBay at Harvey’s suggestion and with his help.

All five appellants stated at one point that Harvey was either the owner of the property or that it was stolen. Shirley Harvey testified that the items were in her possession, but that “they were my sons [sic].” N.T. at 53. She did testify that her son gave her an organ, which was part of the property that he left with her. * * *

Each of the appellants had a story to tell as to how Harvey's property had come into their possession before he died.

But, there was a problem as to the manner in which Harvey may have acquired an interest in that property, according to one witness:

I just had found out that everything was stolen. As soon as I found out I called the guy [Kevin Abendroth] and he started asking me questions. I told him I would help. * * *

I told Kevin I wanted nothing to do with the items once I found out they were stolen items. I helped immediately, or whatever that word is. * * *

Then, the Pennsylvania State Police became involved:

Trooper Rebecca Warner testified that the PSP was prepared to criminally charge Harvey when he died, and outlined her subsequent efforts to return the property to Abendroth.

When Abendroth ultimately failed to come north for the property, the district attorney, on behalf of the PSP, filed a petition to dispose of personal property.

The PSP, through the district attorney, requested permission of the county court to dispose of the property by donation to a local church or by destruction.

Upon learning this, the appellants reappeared to claim it.

Upon learning of the proposed disposal of the property, appellants filed the instant motion for its return.
The court denied the motion, determining that appellants failed to prove by a fair preponderance of credible evidence either ownership and/or lawful possession of the property at issue. In coming to that conclusion, the court noted that appellants failed to claim the property as their own at the time of removal, turning it over without protest.

The court further noted that, to the contrary, appellants either voluntarily brought the property to the police barracks or assisted the PSP in identifying the property sought in the criminal investigation of Harvey. It compared appellants’ respective mindsets at the time of the property’s removal to their modified positions at the subsequent hearing, and observed that there are three or four “people who [didn’t] want any part of this property until today.”

Applying a fiduciary law principle, the county court further concluded "that if it had found that Harvey lawfully owned the property, then only his estate would have any standing to claim it."

The Commonwealth Court affirmed the holding of the trial court in an opinion written by President Judge Bonnie Brigance Leadbetter:

While it is true that appellants were in possession of the property at the time of removal, they were unable to prove the lawful possession required * * *.
Rather, the evidence reflects that all the property was given to appellants by Harvey to hold on his behalf. In other words, they were bailees.

As bailees (or in the case of Shirley Harvey, recipient of a gift), appellants had to prove Harvey’s lawful possession because they could acquire no interest in the property greater than his. To hold otherwise would reverse the burden of proof any time an otherwise innocent person had agreed to hold property temporarily.

Appellants presented no evidence whatsoever that Harvey lawfully possessed the items he left in their care. Indeed, appellants’ testimony was permeated with expressions of doubt that Harvey acquired the property legally. * * *

The Commonwealth Court concluded its opinion with a footnote, somewhat in the nature of a disclaimer:

While holding that appellants failed to prove lawful possession, we emphasize that we do not in any way suggest that appellants’ behavior was unlawful. Indeed, their conduct appears to have been entirely blameless, and they fully cooperated with the authorities when contacted.

Perhaps she was mindful of a principle recited in a far-earlier opinion by another Pennsylvania Court:

And therefore it is that it is slanderous to charge one with stealing chattels, the property of a dead man, [since] the words "convey to the general ear an accusation of stealing them from his representative."

-- Chief Justice Shippen, Pennsylvania Supreme Court, in Bash v. Sommer, 20 Pa. 162, quoted in American Leading Cases (1871).