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SHANK ESTATE. (05/23/60)

May 23, 1960

SHANK ESTATE.


Appeal, No. 171, Jan. T., 1960, from decree of Orphans' Court of Delaware County, No. 871 of 1959, in re estate of Charles R. Shank, Sr. Decree reversed.

COUNSEL

Donald G. Jewitt, with him William A. Welsh, for appellant.

Charles R. Shank, Jr., administrator, appellee, in propria persona.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Eagen

[ 399 Pa. Page 657]

OPINION BY MR. JUSTICE EAGEN.

This appeal is from a decree of the Orphans' Court of Delaware County dismissing a claim for the family exemption provided for under the Act of April 18, 1949, P.L. 512, § 211, 20 PS § 320.211, as amended by the Act of February 23, 1956, P.L. 1084, § 2.

The pertinent statutory provision is as follows: "The spouse of any decedent dying domiciled in the Commonwealth, and if there be no spouse, or if he has forfeited his rights, then such children as are members of the same household as the decedent, may retain or claim as an exemption, either real or personal property, or both, not theretofore sold by the personal representative, to the value of seven hundred and fifty dollars. The surviving husband or wife shall be a competent witness as to all matters pertinent to the issue of forfeiture of the right to the exemption."

The 1956 amendment, supra, was for the purpose of making it clear that a child or spouse living in the same

[ 399 Pa. Page 658]

    household as the decedent is entitled to the family exemption regardless of who may be the technical head of the household.

The claimant herein is a son of the decedent. The contestant is another son named to serve as executor of the father's estate. The facts of record were all stipulated. The unassailable fact is that, continuously for upwards of five years prior to his death, the deceased father "made his home with" the claimant. The father during this period paid "board" plus other items, such as the telephone bill which was in the nature of a business expense incident to the carrying out of his duties as plumbing inspector of the township.

The question for decision is whether or not, under the facts presented, the conclusion follows that the claimant was a "member of the same household as the decedent". The lower court concluded that the decedent was merely a boarder in the son's home, that there was an insufficient showing that the decedent was ...


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