Appeal, No. 141, March T., 1963, from decree of Orphans' Court of Allegheny County, No. 1925 of 1960, in re estate of James H. Stewart, deceased. Decree reversed.
Eugene J. Reinbold, with him Robert A. Jarvis, Raymond W. Cromer, and Beck, McGinnis & Jarvis, for appellant.
Charles C. Keller, with him Peacock, Keller & Yohe, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE JONES
James H. Stewart (decedent), died April 10, 1960 unmarried, without issue him surviving. Although at the time it was believed that decedent had made a will, diligent searches by all concerned failed to discover any will. Therefore, a niece of decedent applied for and was granted letters of administration on April 21, 1960.
In due course of administration, a final decree of distribution was entered by the Orphans' Court of Allegheny County on April 21, 1961. As a result of that decree, the balance of the estate was distributed, under the intestate laws, to decedent's four nieces and two nephews. However, pending final tax settlement, $1500 was withheld from distribution.
During the administration of the estate two claims by Miss Anna Vecenie (appellant) were presented: one claim for fifty percent share of the estate, and another claim for services rendered decedent. The first claim is now categorized as a claim for a share of the estate under the last will, while the second is categorized as a separate and distinct claim.
Approximately two months after the distribution decree a will of the decedent was found. The executrix under that will*fn1 took the appropriate steps and the will was admitted to probate on August 11, 1961. That will provided, inter alia, that Miss Vecenie was to receive thirty percent of the estate, and the four nieces
were beneficiaries of the residue in varying proportions. The two nephews were not mentioned in the will.
Upon probate of the will, Miss Vecenie filed a petition in the Orphans' Court of Allegheny County for a citation on the two nephews to show cause why the estate balance distributed to them should not be returned to the executrix for proper distribution under the will. Two of the nieces, whose intestate shares exceeded their legacies, ...