Appeal, No. 6, Jan. T., 1964, from decree of Orphans' Court of Lackawanna County, No. 139 of 1960, in re estate of Hilary Bokey, also known as Hilary Boki, deceased. Decree reversed.
Joseph T. Mc,Donald, with him Thomas J. Foley, Sr., and Rosser, McDonald, Marcus & Foley, for appellant.
James Francis Lawler, with him John Dano, and Ostroff, Lawler & Baker, for appellees.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
Hilary Bokey (decedent), a resident of Lackawanna County, died January 22, 1960, intestate, survived by neither wife nor children. Sebastian Boki (Boki), administrator of decedent's estate, filed his first and final account in the Orphans' Court of Lackawanna County and, at the audit of that account, the court awarded the balance of the estate to Boki as decedent's first cousin. Exceptions to that award were filed by a consular representative of the USSR on behalf of Soviet nationals claiming to be sisters of decedent. These exceptions alleged that the court erred in finding that Boki was decedent's first cousin and in not requiring him to prove the non-existence of other heirs.
After several hearings, the court appointed a master to investigate into the facts of the alleged kinship
of the several claimants to the decedent.*fn1 After several hearings and personal investigation, the master filed a report in which, inter alia, he concluded that Boki was a first cousin and that decedent had two sisters still alive in Russia,*fn2 but that neither Boki nor the sisters had met the burden of proof necessary to establish their respective claims. In view of his conclusion that the claimants had not proven their claims, the master recommended that the balance of the estate be transferred to the Commonwealth without escheat either under the 1929 Act*fn3 or the 1953 Act.*fn4 Acting upon this recommendation, the court entered a decree which sustained the exceptions to its original decree of distribution and directed Boki, as administrator, to transfer the balance of the estate to the Commonwealth without escheat either under the 1929 Act or the 1953 Act. From that decree Boki appeals.*fn5
This controversy resolves itself into very narrow issues: (1) have any of the claimants, by evidence sufficient in quantity and quality, proven a right to distribution
of this estate, in whole or in part? (2) if none of the claimants have proven such right, should the balance of this estate be awarded to the Commonwealth ...