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ATLEE ESTATE. (03/13/62)

March 13, 1962

ATLEE ESTATE.


Appeal, No. 24, Jan. T., 1962, from decree of Orphans' Court of Delaware County, No. 662 of 1959, in re estate of Washington L. Atlee, deceased. Appeal dismissed.

COUNSEL

Edward Kassab, for appellant.

Henry W. Maxmin, with him Edward F. Hitchcock, Myron Jocoby, and Jacoby & Maxmin, for appellees.

James L. Rankin filed a brief under Rule 46.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.

Author: Jones

[ 406 Pa. Page 529]

OPINION BY MR. JUSTICE BENJAMIN R. JONES

W. L. Atlee (decedent), a Delaware County resident, died testate, on December 15, 1958 and letters testamentary were issued to James L. Rankin.

Only two paragraphs - paragraphs 10 and 11 - of decedent's will are presently pertinent. In paragraph 10, decedent gave to the Third Presbyterian Church of Chester, Pa. (Church), "a full ten percent of all the residue of [his] estate" stating that this bequest "shall be void in the event that I am not a member of said Church at the time of my decease, and it shall also be void in the event that said church as of the date of my

[ 406 Pa. Page 530]

    of this petition was that the members of the "corporation" of the Church at a special meeting and the trustees had voted to reject the bequest to the Church. Upon filing of that petition, the Presbytery of Philadelphia (Presbytery), as the superior judicatory of the Church requested permission to intervene and this permission was granted. The Presbytery and its Administrative Commission (Commission) filed an answer in which they averred, inter alia, that the Session of the Church, the superior constituted body of the Church under the Constitution of the Presbyterian Church of the U.S.A., had accepted the bequest and such action had been ratified by the Commission of the Presbytery. Answers to the petition were also filed by the three alternative legatees under paragraph 11 of the will, including Toccoa Falls Institute (appellant), each alternative legatee requesting a one-third share of the "rejected" bequest. After the taking of testimony, the court below dismissed the executor's petition and directed the executor to comply with the adjudication of November 23, 1959 by making immediate payment of the bequest to the Session of the Church. On February 28, 1961, the executor delivered a check in the amount of the bequest ($48,568.70) to the Session of the Church and received in exchange therefor a Satisfaction of Award which is now filed of record.

On or about April 24, 1961, Toccoa Falls Institute filed an appeal to this Court. On October 27, 1961 appellees (the Church, the Commission and the Presbytery) filed a motion to quash the appeal. On November 3, 1961 we directed that such motion be heard at the time of oral argument on the merits.

The motion to quash this appeal is based primarily on two grounds: (1) Toccoa Falls, the sole appellant, has no standing to appeal; (2) ...


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