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KILPATRICK ESTATE (11/13/51)

November 13, 1951

KILPATRICK ESTATE


Appeal, No. 125, March T., 1951, from decree of Orphans' Court of Fayette County, June T., 1950, No. 52, in Estate of George W. Kilpatrick, deceased. Decree affirmed.

COUNSEL

Bresci R.P. Leonard, with him Thomas A. Waggoner, Jr., Rahauser, Van der Voort, Royston, Robb & Leonard, and Phillips, Waggoner, Phillips & Board, for appellant.

Joseph W. Ray, Jr., with him Ray, Coldren & Buck, for appellee.

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

Author: Ladner

[ 368 Pa. Page 400]

OPINION BY MR. JUSTICE LADNER

This is an appeal from the Orphans' Court of Fayette County dismissing appellant's petition praying for a review of a final account filed in the Estate of George W. Kilpatrick, deceased, and confirmed absolutely more than fourteen years prior to the filing of the petition.

The petitioner (appellant) was not a distributee of the balance in the account which he seeks to review nor any party in interest therein. He is the second husband of Gertrude M. Kilpatrick Lare whose first husband was the decedent, George W. Kilpatrick. She was a distributee under the account sought to be reviewed, but is now dead. She was survived by the petitioner (her second husband) and by two brothers and a sister. The petitioner is not her personal representative but is the proponent of her alleged will which is being contested. The contest has proceeded to the state where an issue d.v.n. was awarded by this Court May 21, 1945, though for some undisclosed reason has never been tried: see Lare Will, 352 Pa. 323, 42 A.2d 801 (1945).

The personal representative of Gertrude Lare's Estate is the Fidelity Trust Company of Pittsburgh, having been appointed administrator d.b.n. The petition for review discloses that petitioner had previously filed a petition in the Orphans' Court of Allegheny County for a citation to compel the administrator of Mrs. Lare's Estate to apply for a review in this estate (Kilpatrick Estate). That petition was refused after "extended

[ 368 Pa. Page 401]

    record of pleadings, conferences and hearings," for the reason that there was no fraud on the part of the accountant,*fn1 from which order refusing the petition the appellant had appealed to this court but the appeal was discontinued. The petition for review in the instant case further avers that petitioner as surviving husband of Gertrude K. Lare is sole legatee under her contested will and if said will is not upheld, is nevertheless entitled to a surviving spouse share under the intestate laws. It charges also that the accountant whose account is sought to be reviewed had fraudulently failed to account for all the decedent's assets. In the view we take of the standing of the petitioner to ask the relief prayed for, these allegations need not be recited with particularity.

To this petition the respondent accountant filed an answer in the nature of preliminary objections raising the following questions: (1) whether the petitioner had any standing to file the petition for review; (2) whether the finding of te Allegheny County Orphans' Court that there was no fraud and consequent refusal of appellant's application to compel the administrator of Mrs. Lare's estate to ask for a review, was res adjudicata or conclusive on the Fayette County Orphans' Court; (3) whether the petition for review showed on its face such laches as would bar a review.

(1) President Judge CARR, specially presiding in the orphans' court below, so satisfactorily and correctly disposed of the first objection that we adopt with approval that portion of his opinion where he says, "... nor in our opinion has the petitioner such ...


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