Appeal from decree of Orphans' Court of Allegheny County, No. 4794 of 1963, in re estate of Louis Burger, deceased.
Walter M. Newman, with him Roland Fleer, for appellant.
Robert A. Jarvis, with him Beck, McGinnis & Jarvis, for appellee.
Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Eagen concurs in the result. Dissenting Opinion by Mr. Justice Jones.
Louis Burger, a resident of the City of Pittsburgh, Allegheny County, died on November 5, 1963, survived by his widow, Frances Burger; a grandchild, Felice E. Walsh; his brother, Max Burger, the appellant; and two sisters, Rose Mosher and Lillie Sonnenblick.
On September 3, 1964, approximately 10 months after the death of her husband, Mrs. Burger, decedent's widow, elected to take against the will. Notice of her election was given to appellant and the other legatees. Early in January of 1964, appellant and the two sisters, who are all residents of New York, retained New York counsel to represent them, but neither they nor the counsel they retained in New York retained local counsel in Pittsburgh. There was some correspondence between the executor and New York counsel. The executor did include a suggestion that Pittsburgh counsel be retained and did notify the legatees that the Final Account was filed on November 24, 1964, and
that the audit would be held by the Orphans' Court on January 18, 1965, or as soon thereafter as the court would reach the same on the audit list.
The decree of the auditing Judge contained the following Schedule of Distribution:
"Balance for distribution $69,096.35
"Amount suspended in hands of Ac-
countant to Dec. 1, 1965 for Fed.
Estate Tax Audit 3,000.00
"To: Frances Burger, widow, per
election to take against the
will, filed 1/2 balance, viz:
Tr. Inh. Tax paid at 2% ...