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NICOLAZZO ESTATE. (04/21/64)

April 21, 1964

IN RE NICOLAZZO ESTATE.


Appeal, No. 100, March T., 1964, from decree of Orphans' Court of McKean County, Oct. T., 1955, No. 56, in re estate of Frank Nicolazzo, deceased. Decree reversed.

COUNSEL

Milton W. Lamproplos, with him Philip F. Jacobus, and Eckert, Seamans & Cherin, for appellant.

Daniel W. Shoemaker, for appellee.

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

Author: Jones

[ 414 Pa. Page 187]

OPINION BY MR. JUSTICE JONES

This is an appeal from the allowance by the Orphans' Court of McKean County of a claim against a decedent's estate to which the estate raised the defense that such claim was barred by the statute of limitations.

The decedent, Frank Nicolazzo (Nicolazzo), died on January 31, 1953 and the appellant, Earla L. Nicolazzo, qualified as executrix of his estate. On, or shortly before, July 7, 1953, the claimant, Domenico Rizzo (Rizzo) presented his claim based on an unsealed demand note in the face amount of $2,000. This note was filed with the estate counsel by Rizzo.

The Orphans' Court of McKean County, on the petition of the executrix, appointed an auditor to hear and pass on claims filed against the estate. At the first hearing held by the auditor, on February 1, 1956, Rizzo appeared and presented his claim. The note in question was dated July 3, 1934 and, although the printed words "with interest" appeared thereon, there is no mention as to the rate of interest to be paid on the note.*fn1 The estate did not question Nicolazzo's signature but raised the defense that the alleged debt was barred by the statute of limitations.

To overcome such defense, Rizzo, at a second hearing held on May 8, 1957, presented the testimony of one Sam DeLeo. This testimony consisted of the witness' recital of a conversation which he overheard between

[ 414 Pa. Page 188]

Nicolazzo and Rizzo in which Nicolazzo acknowledged a debt to Rizzo in the amount of $2,000. The witness also testified that, at the time of said conversation, Nicolazzo made payment to Rizzo in the sum of approximately $200, allegedly as interest on the alleged debt. This transaction to which DeLeo testified allegedly took place in June of 1952.The estate challenged the sufficiency of the evidence thus presented by the witness, DeLeo.

The auditor, in his report of March 13, 1961, allowed the claim of Rizzo and to such report the executrix filed exceptions. These exceptions were denied in a supplemental report filed by the auditor on March 28, 1961. The executrix then filed objections to the reports of the auditor. The court below filed an opinion and ...


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