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MORELL ESTATE (09/26/67)

decided: September 26, 1967.

MORELL ESTATE


Appeal from decree of Orphans' Court of Lehigh County, No. 54673, in re estate of N. L. Morell, deceased.

COUNSEL

Lewis R. Long, with him Justin D. Jirolanio, for appellant.

Hugh M. Morrison, with him James N. Diefenderfer, Norman Seidel, Charles D. Hogan, and McFadden, Riskin & Williams, and Butz, Hudders & Tallman, for appellees.

Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Cohen took no part in the consideration or decision of this case.

Author: Roberts

[ 426 Pa. Page 529]

Both Cathryn Morell, a citizen of Pennsylvania, and Angelina M. Morell (a/k/a Angelina Welsch), a citizen of New York City and appellant herein, claim to be the lawful widow of N. L. Morell, whose will was probated in Lehigh County on February 10, 1965. Each

[ 426 Pa. Page 530]

    has timely filed an election to take against the will of the decedent, Act of April 24, 1947, P. L. 89, as amended, 20 P.S. ยง 180.8 (Supp. 1966). On May 12, 1966, the executors of the Estate of N. L. Morell petitioned the Orphans' Court of Lehigh County for a citation, which was awarded on the 16th, to show cause why the election of Angelina Morell should not be vacated; on June 15 appellant filed her answer to this citation.

In the interim, on June 14, appellant commenced an action in the United States District Court for the Eastern District of Pennsylvania wherein she sought to have herself declared the lawful wife of the decedent, thereby establishing her right to participate in the decedent's estate. Jurisdiction in the federal courts was based upon the monetary value of her claim being over $10,000 and diversity of citizenship.

On September 7, 1966, appellant filed a motion in the Orphans' Court of Lehigh County to strike from the hearing list the executor's citation to show cause why her election should not be vacated. In support of this motion appellant argued that the federal district court had, by reason of her commencing a suit therein, exclusive jurisdiction to determine her relationship to the decedent. The following day, the Orphans' Court of Lehigh County determined that it had jurisdiction over both the subject matter and the requisite individuals. It then proceeded to consider the show cause citation on its merits. Cathryn Morell testified that she had married the decedent on August 13, 1961 and introduced a certificate of marriage to that effect. Angelina Morell, through her attorneys, declined to proceed further in the hearing on the grounds that the court lacked jurisdiction. On September 9, the court below ordered appellant's election vacated and set aside. This appeal followed.

A hearing was held November 7, 1966, in the United States District Court for the Eastern District of

[ 426 Pa. Page 531]

Pennsylvania before the Honorable John P. Fullam on appellant's complaint filed the previous June. In its memorandum opinion, the district court stayed all proceedings pending the final determination of the Pennsylvania litigation, that is, pending the outcome of this appeal. Angelina M. Morell v. Estate of N. L. Morell et al., Civil Action, No. 40464 (E.D. Pa. Nov. 29, 1966).*fn1 The pertinent portion of Judge Fullam's opinion follows: "The mere recital of the foregoing facts demonstrates that the jurisdiction of the Lehigh County Orphans' Court over the subject matter of this controversy, and over the person of the plaintiff, has attached. Assuming, without deciding, that this court would also have concurrent jurisdiction, cf. Markham v. Allen, 326 U.S. 490, 66 S. Ct. 296, 90 L. Ed. 256 (1946), we are nevertheless ...


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