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OKOWITZ WILL. (03/23/61)

March 23, 1961

OKOWITZ WILL.


Appeals, Nos. 61 and 62, Jan. T., 1961, from decree of Orphans' Court of Wayne County, No. 140 O.C.D. "D-1", in re estate of Anthony Okowitz, deceased. Decree affirmed.

COUNSEL

James Rutherford, with him Kathleen A. McDonnell, and Louis B. Nielsen, for appellants.

Leigh B. Maxwell, for appellee.

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

Author: Jones

[ 403 Pa. Page 84]

OPINION BY MR. JUSTICE BENJAMIN R. JONES.

On July 23, 1952, Anthony Okowitz, a Wayne County resident, died in Honesdale, Pa. Surviving him as next-of-kin were four sisters, two brothers and the son of a deceased brother.*fn1 After Okowitz's death, a paper which purported to be his last will was found in a dresser drawer in his bedroom. The validity of this paper, directed to be probated as Okowitz's last will, is the subject of these appeals.

An appeal was taken*fn2 from the probate of this will to the Orphans' Court of Wayne County; after a hearing, that court upheld the probate and dismissed

[ 403 Pa. Page 85]

    the appeal. Thereafter, the matter was reopened by the court;*fn3 after a hearing, the court vacated its former decree and returned the matter to the Register of Wills to determine "what part or parts of the will, if any,... [might] be admitted to probate." The parties then stipulated that the Register of Wills should decide the issue upon the testimony previously taken and on that which is apparent upon the face of the will. So acting, the Register of Wills decided that no part of the will should be admitted to probate. From the Register's ruling an appeal*fn4 was then taken, hearings were held and the court, finding no substantial dispute of fact, sustained the appeal and directed that the will, with the exception of certain parts thereof, be admitted to probate. The court found that the residuary bequests to a niece, Helen Higgins, and a sister-in-law, Anna Elizabeth Hensel, had been "obliterated and crossed off in the Will", that the residuary bequest to a sister, Mollie McDermott, had been "1" percent when the will was executed and not "2" percent as now appears on the face of the will and that the "name of Anna Elizabeth Hensel as executrix had been crossed out and the name of Theresa Warwick written in by [Okowitz]." Accordingly, the court cancelled the Higgins and Hensel bequests, reduced the McDermott bequest from "2" to "1" percent and directed the appointment of an administrator of the estate. From that decree, two of decedent's sisters have appealed to this Court.

The will, lawyer-prepared and dated January 2, 1940, was entirely typewritten with two exceptions:

[ 403 Pa. Page 86]

(1) in each residuary bequest a space was left for the insertion of the particular percentage of the residue each named legatee would take and each of these spaces was filled in with a handwritten numeral or numerals and (2) the signatures of the decedent and his two witnesses were handwritten. At the bottom of the will is an attestation clause in the usual form signed by the two witnesses.

As the will was presented for probate its residuary clause (Item Third) appeared as follows: "All of the rest, residue and remainder of my said estate, real, personal and mixed, of whatsoever kind and character and wheresoever situate, I give, devise and bequeath to the following named persons, to them and their heirs and assigns forever, in the percentages set opposite their respective names, viz:*fn*

"To my sister, Mollie McDermott, of New York City, an undivided 2 percent.

"To my sister, Theresa Warwick, wife of Edward Warwick, of Honesdale, Pennsylvania, ...


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