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OBICI ESTATE (05/25/53)

May 25, 1953

OBICI ESTATE


Appeal, No. 281, Jan. T., 1952, from decree of Orphans' Court of Luzerne County, 1947, No. 1525, in Estate of Louise Musante Obici, deceased. Decree affirmed.

COUNSEL

David Berger, with him Leon H. Kline, Frank Lenahan and Jacob Schiffman, for appellant.

Bernard G. Segal, with him Edward W. Mullinix, Matthew D. Mackie, William A. Schnader, Schnader, Harrison, Segal & Lewis and Andrew Hourigan, Jr., for appellee.

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

Author: Stearne

[ 373 Pa. Page 568]

OPINION BY MR. JUSTICE ALLEN M. STEARNE

This appeal is from a decree of the Orphans' Court of Luzerne County dismissing appeal of Harry J. Musante, from the decree of the register of wills, revoking letters of administration issued to him as administrator of the estate of Louise Musante Obici, deceased. The question is whether or not the intestate had a "family or principal residence" in Luzerne County, within the meaning of sec. 2 (a) of the Fiduciaries Act of June 7, 1917 P.L. 447, as amended, 20 PS ยง 341. The register and on appeal the orphans' court decided that she did not and decreed revocation of the letters which appellant had secured upon his ex parte application,

[ 373 Pa. Page 569]

    after citation to intestate's next of kin.

Louise Musante Obici, the intestate, was the wife of Amedeo Obici. She died August 29, 1938, in the City of Wilkes-Barre, Pennsylvania. She left to survive her, as her only heirs and next of kin, her husband, Amedeo Obici, three sisters, one nephew (appellant) and a niece. Appellant in his petition for letters dated December 3, 1947, nine years after intestate's death, averred that she was a resident of the City of Wilkes-Barre and was possessed of personal property to the value of $500. Letters of administration were granted to appellant the same day.

Amedeo Obici, the surviving husband, died testate on May 21, 1947 (nine years after the death of his wife), domiciled in Suffolk County, Virginia. Letters testamentary were granted to the executors named in his will who are the appellees.

On February 4, 1948, on petition of appellees, a citation was awarded to appellant to show cause why the letters of administration issued to appellant by the register of wills should not be revoked. It was alleged that intestate was domiciled in Virginia and not in Pennsylvania, at the time of her decease, and that she possessed no property in Pennsylvania. An answer in denial was filed by appellant and issue was joined. Upon a hearing by the register of wills, he decided that intestate at date of her death was not domiciled in Pennsylvania, but was domiciled in the State of Virginia. The register revoked the letters of administration. On appeal to the Orphans' Court of Luzerne County, appellant's appeal was dismissed. An appeal to this Court then followed.

It was stated by counsel that under the law of the State of Virginia, the husband's share of the estate of this intestate (who left no issue surviving) would be the whole thereof. Should such intestate be domiciled

[ 373 Pa. Page 570]

    in Pennsylvania, the surviving husband would be entitled to a one half portion of her estate and the remaining half would pass to her next of kin (above named).

It was not shown that intestate possessed any real or personal property in Pennsylvania. No inventory has been filed and no transfer inheritance tax has been assessed or ...


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