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UMBERGER ESTATE (03/27/52)

March 27, 1952

UMBERGER ESTATE


Appeals, Nos. 57 and 60, Jan. T., 1952, from decree of Orphans' Court of Lebanon County, May T., 1949, No. 8, in Estate of Carrie S. Umberger, deceased. Decree affirmed.

COUNSEL

Christian R. Gingrich, for appellants.

L. E. Meyer, with him Meyer, Brubaker & Whitman, for appellee.

Before Drew, C.j., Stern, Stearne, Bell, Chidsey and Musmanno, JJ.

Author: Musmanno

[ 369 Pa. Page 588]

OPINION BY MR. JUSTICE MUSMANNO

On October 14, 1947, Carrie S. Umberger, being then 62 years of age, made out her will, paragraph 4 of which reads: "I give my double house and lot of ground with appurtenance thereunto belonging situate at numbers 208 and 210 West Sheridan Avenue, Annville, Penna.

[ 369 Pa. Page 589]

    to whoever takes care of me in my last illness or old age at the discretion of the executor."

She was at this time in reasonably good health and, with the exception of a nervous condition following an operation she had undergone several years previously, carried on the normal routine of a widow living alone. She was able to travel without assistance and walked about the town unaided in any way. On the morning of June 3, 1948, she rose and began the day without incident. In the afternoon she entertained company at her home and then accompanied her departing guests to the bus station. Returning home she prepared her supper and ate it. In the early evening she experienced some pains in her chest and summoned her doctor who administered a hypodermic injection. In accordance with her wish he then endeavored to reach her cousin, Harry M. Walmer, but failing in this he telephoned a certain Mrs. Margaret Zimmerman, also at Mrs. Umberger's request. Mrs. Zimmerman replied that she was engaged at the moment, but would come as soon as she could. At 9 p.m. she arrived, accompanied by a Mrs. Lizzie Fidler. The doctor then left, first telling the women to call him in the event it should become necessary. The two visitors gave Mrs. Umberger her medicine and made her comfortable in accordance with instructions received from the doctor. At 4 a.m. Mrs. Umberger died, the cause of death being acute heart attack.

For the services thus rendered that night, Mrs. Zimmerman and Mrs. Fidler demanded the double house at 208-210 West Sheridan Avenue, Annville, Pennsylvania, asserting that they took care of Mrs. Umberger in her last illness or old age, as stipulated in the will.

The executor of the will, Harry M. Walmer, cousin to the deceased, rejected the demand of the two women on the ground that he had been invested by Mrs.

[ 369 Pa. Page 590]

Umberger's will with a discretion, in the exercise of which he believed that the offices of the two claimants did not measure up to what was required in order to be awarded the real estate in dispute.

Mrs. Zimmerman and Mrs. Fidler, accompanied by a policeman and energetic counsel, proceeded to the premises and took possession thereof.

As the executor refused to give the claimants any documentation of ownership to the property they had seized, the latter instituted proceedings for a declaratory judgment to obtain title to the premises. The Orphans' Court of Lebanon County, after hearing, ...


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