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PUBLICKER ESTATE. (06/25/56)

June 25, 1956

PUBLICKER ESTATE.


Appeals, Nos. 164 and 165, Jan. T., 1956, from order of Orphans' Court of Montgomery County, No. 56,263, in re estate of Rose Publicker, deceased. Order reversed.

COUNSEL

Thomas D. McBride, with him Dilworth, Paxson, Kalish & Green, for appellants.

C. Brewster Rhoads, with him Samuel S. Logan, Jr., Federico F. Mauck, Montgomery, McDracken, Walker & Rhoads and Wright, Mauch, Hawes & Spencer, for appellees.

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

Author: Chidsey

[ 385 Pa. Page 404]

OPINION BY MR. JUSTICE CHIDSEY

The sole question involved in this appeal from a decree of the Orphans' Court of Montgomery County is whether the Register of Wills of that county had probate jurisdiction of the will and codicils of Rose Publicker.

The testatrix, widow of Harry Publicker, owner of the highly successful Publicker Industries in Philadelphia, died on May 19, 1955. What was purported to be her last will and testament, dated December 28, 1942, together with codicils thereto, dated November 29, 1944 and April 6, 1945 and republication thereof, dated April 23, 1953, were offered for probate on May 24, 1955 before the Register of Wills of Montgomery County, Pennsylvania, by the executors named therein. A formal caveat and request for certification was filed on June 2, 1955 with the Register of Wills of Montgomery County by the appellant, Elva B. Mangold, a daughter of the testatrix, and Lemuel B. Schofield, Esquire,*fn1 guardian ad litem for the three minor children

[ 385 Pa. Page 405]

    of Mrs. Mangold. The caveat challenged the instruments offered for probate on the grounds of undue influence, fraud and that the decedent did not have her last family or principal residence in Montgomery County, but in Philadelphia County. After certification of the record to the Orphans' Court of Montgomery County, a hearing was held in July, 1955, which, by agreement of counsel and with the court's approval, was limited solely to the jurisdictional issue; testimony concerning the allegations of fraud and undue influence to abide determination of the question as limited. On December 16, 1955 the court filed an opinion, together with findings of fact and conclusions of law, dismissing the caveat on the jurisdictional ground and entered a decree adjudging that the Register of Wills of Montgomery County had probate jurisdiction. Appellants' exceptions to the decree were subsequently dismissed and from the decree thereupon entered this appeal followed.

Section 301 of the Fiduciaries Act of 1949, Act of April 18, 1949, P.L. 512, 20 PS § 320.301, provides, inter alis, that "Letters testamentary or of administration on the estate of a decedent domiciled in the Commonwealth at the time of his death shall be granted only by the register of the county where the decedent had his last family or principal residence.". The words "family or principal residence", adopted from the Fiduciaries Act of June 7, 1917, P.L. 447, Section 2(a), have been construed to mean domicile as opposed to temporary residence: Obici Estate, 373 Pa. 567, 570, 97 A.2d 49. The domicile of a person is the place where he has voluntarily fixed his habitation with a present intention to make it either his permanent home or his home for the indefinite future. To effect a change of domicile there must be a concurrence of the following factors: (1) physical presence in the place

[ 385 Pa. Page 406]

    where domicile is alleged to have been acquired, and (2) an intention to make it his home without any fixed or certain purpose to return to his former place of ...


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