Appeal from decree of Orphans' Court of Philadelphia County, No. 3786 of 1963, in re estate of Harry Zeitchick, deceased.
Edward A. Garabedian, for appellant.
Leonard B. Rosenthal, with him Abrahams & Loewenstein, for appellee.
Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Jones and Mr. Justice Roberts would quash the appeal because not timely. Mr. Chief Justice Bell took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Justice Cohen.
This appeal follows the decree of the Orphans' Court of Philadelphia County, dismissing appellant's exceptions to the amended supplemental adjudication of Judge Saylor, awarding $10,000 to the widow, Sophie Gross Zeitchick, appellee, as a creditor of the estate.
The testator died on December 14, 1963, survived by his widow, the appellee, and a son, the appellant. The marriage between the testator and the appellee was the second for both, and the appellant, decedent's son, was born of his previous marriage. The parties were married on October 12, 1956. On October 5, 1956, they executed an antenuptial agreement, under which the testator agreed to devise the premises at 6474 Anderson Street, Philadelphia, to appellee, in consideration
for which the appellee agreed to release the rest of his estate from her claims as the surviving spouse. The agreement further provided that if the real estate at 6474 Anderson Street were sold in his lifetime, he would provide then, under such circumstances, in his will, a bequest of $10,000 to his widow in lieu of the real estate.
On the same day, the testator executed his Last Will and Testament, wherein, as agreed in the antenuptial agreement, he provided: "2. I give, devise and bequeath to my beloved friend, Sophie Gross, whom I intend to marry within the next few weeks, real estate premises in which I reside, to wit: 6474 Anderson Street, Philadelphia, Pennsylvania and all the contents thereof, subject, however, to any balance due on a mortgage against the said property. If I should sell the said premises 6474 Anderson Street before my decease, then in lieu thereof, I give, devise and bequeath to my beloved friend, Sophie Gross, the sum of Ten Thousand Dollars in cash as well as the contents of any other apartment or house which we may occupy as our home at the time of my death."
In the same instrument, the testator devised and bequeathed to his son, Milton Zeitchick, all his right, title and interest in the partnership business conducted by himself and his son, including the real estate at 623 S. Sixth Street, Philadelphia, Pa., where the business was conducted. In addition, testator named his son as residuary legatee and executor of his estate.
On December 18, 1957, testator conveyed the premises at 6474 Anderson Street, Philadelphia, Pennsylvania, in which conveyance the appellee joined.
Testator's estate consisted of a small amount of cash, household goods and furniture appraised at $708, decedent's interest in the partnership of Harry Zeitchick & Son, and the real estate where the business ...