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BENNETT ESTATE (01/04/51)

January 4, 1951

BENNETT ESTATE


Appeal, No. 191, Jan. T., 1949, from decree of Orphans' Court of Union County, Jan. T., 1947, No. 10, in Estate of Mary W. Bennett, Deceased. Decree affirmed.

COUNSEL

Erwin L. Pincus, with him Bernard A. Fischer and Harry Fischer, for appellant.

Maurice Heckscher, with him Carl Rice, Michael Kivko, John B. Martin and Duane, Morris & Heckscher, for appellees.

Before Drew, C.j., Stearne, Jones, Bell, Ladner and Chidsey, JJ.

Author: Ladner

[ 366 Pa. Page 233]

OPINION BY MR. JUSTICE LADNER

The decedent, Mary W. Bennett, died October 10, 1946. She had made a holographic will in which she appointed as executors Michael Kivko, Esq. and Carl

[ 366 Pa. Page 234]

Rice, Esq., members of the Northumberland County bar. By her will she left her entire estate to the appellant, Jacob Wagner, who is not related to her. The bequest reads as follows: "SECOND: All the rest, residue and remainder of my estate, real, personal and mixed, wheresoever situate, I give, devise and bequeath to Jacob Wagner, now of 142 West 77th Street, New York (24), N.Y., in fee simple, and absolutely, this in consideration and appreciation of his kindness to me at a time when I needed a friend more than anything else, (he being a custodial officer at the U.S. Penitentiary, at Lewisburg,) and I am directing that he have, use and enjoy this estate bequeathed to him, but to take care of it so as not to become poor and needy or pauperized, it being my wish that he shall always have something; and that he shall not interfere with my executors hereinafter named, in their settlement of my estate so given him, as I have every confidence in them, and in their honesty and integrity, and know they will do the things required of them in the settlement of my estate, in a legal and proper manner, according to law."

Her will was contested by the next of kin in an appeal from probate charging want of testamentary capacity and undue influence exerted by Jacob Wagner. Wagner employed no counsel of his own but acquiesced in the action of the executors in defending the will and employing the necessary associate counsel in Union County. The contest proceeded to a hearing which lasted four days and after briefs were filed and argument had, the court refused an issue and dismissed the appeal.

Upon the filing an account, objections were filed by Jacob Wagner, the principal one of which took exception to the items of credit aggregating $19,300 for executors' commissions and counsel fees. This account was then referred to Merrill W. Linn, Esq., as auditor.

[ 366 Pa. Page 235]

The auditor, after protracted hearings (some seven in number) filed a comprehensive report in which he dismissed the objections to the account. To his report exceptions were filed by Jacob Wagner, all which were dismissed and the auditor's report confirmed by the court and from ...


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