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October 8, 1954


Appeals, Nos. 16 and 17, Feb. T., 1954, from decree of Orphans' Court of Lackawanna County, 1950, No. 776, in Estate of Anna L. McFadden, deceased. Decree affirmed in part and reversed in part. Appeal by contestants from probate of will. Before BRADY, P.J.


John W. Bour, Scranton, with him Albert P. Leonzi, Lehighton, and Martin H. Philip, for Palmerton appellants.

Paul A. McGlone, Scranton, for appellee.

Before Rhodes, P.j., Ross, Gunther, Wright, Woodside and Ervin, JJ. (hirt, J., absent).

Author: Woodside

[ 177 Pa. Super. Page 39]


We are concerned here with the legal residence of a testatrix at the time of her death and whether an issue devisavit vel non should be framed.

Anna L. McFadden, a spinster, died July 21, 1950 in a nursing home in Scranton, at the age of 74. What purported to be her last will and testament was admitted to probate by the register of wills of Lackawanna County and letters testamentary were granted to Marjorie W. Gleason on August 25, 1950. An appeal was taken from the probate by Anna McFadden Helferty and William P. McFadden, niece and nephew of the decedent, being heirs at law and beneficiaries in the probated will.

The deceased had as her closest living relatives 7 nieces, 7 nephews, 5 grandnieces and 6 grandnephews. Marjorie W. Gleason, a grandniece, was given the residue of the estate and named executrix in the probated document.

The grounds upon which the appeal was taken from the register of wills were: "(1) Lack of probate jurisdiction, in that the domicile of the decedent at the time

[ 177 Pa. Super. Page 40]

    of her death was in East Mauch Chunk, Carbon County, this Commonwealth.

"2. Testamentary incapacity and/or undue influence."

Before any testimony was taken Marjorie W. Gleason died and her husband Frank A. Gleason was subsequently issued letters of administration d.b.n. c.t.a. on the estate of Anna L. McFadden and substituted as a party for his late wife in this action.

After extended hearings on the preliminary question of domicile, the court affirmed the jurisdiction of the register of wills holding that the deceased was domiciled in Lackawanna County at the time of her death. The parties thereupon filed a stipulation that the evidence presented at the hearings on domicile and jurisdiction along with the record of probate, without the production of further evidence, be used to determine the question of testamentary incapacity and undue influence.

The court concluded that there was no substantial dispute of a material fact as to the testamentary capacity of the testatrix nor as to undue influence at the time the will was executed and dismissed the appeal.

There are some facts in the case concerning which there is little or no dispute. Anna McFadden was reared in Scranton. When she was a young woman she left there for New York where she served as a waitress in Wanamaker's Tea Room for 25 years. From there she went to Atlantic City where she resided for a number of years. Thereafter for a time she lived with her brother in Philadelphia and in Margate, New Jersey. This brother predeceased her and she inherited from him. Thereafter gradually becoming crippled by arthritis, she spent relatively short periods of time in a number of different nursing homes. There is evidence

[ 177 Pa. Super. Page 41]

    that during all of her life she returned to Scranton for visits with relatives and referred to that city as "home".

In 1946 she left a nursing home in Philadelphia and went to White's Nursing Home in Scranton. After staying there for a year and a few months she went to East Mauch Chunk in May of 1947. There she resided in an apartment at 315 South Street with a friend.

There can be no doubt that she established a bona fide domicile and residence in East Mauch Chunk in Carbon County. She had her furniture there, her bank account and securities there (except one bank account in Philadelphia), licensed her automobile from that address, filed her income tax returns from that address, had a telephone in her name there, became an active church member there, contacted a funeral director from there concerning her burial, and in other ways left no doubt that East Mauch Chunk was her domicile, and that she, while ...

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