Appeal from decree of Orphans' Court of Montgomery County, No. 67665, in re estate of Adam Loudenslager, deceased.
Harry L. Kaufman, with him White, Kelly & Gennetti, for appellants.
Richard S. Clover, for appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice O'Brien joins in this dissenting opinion.
This appeal presents a narrow issue: was the "last family or principal residence" of Adam Loudenslager (decedent) in Montgomery County so as to vest the register of wills of that county with jurisdiction to probate his will?
For a number of years, decedent owned and resided in a property known as 2716 North Ruth Street, Philadelphia, wherein he had maintained an apartment above his business shop since approximately 1940 and which he continued to maintain until the date of his death on July 27, 1966. Between August and November 1965, decedent stayed with his daughter, a Mrs. Gross, at 10406 Haldeman Avenue, Philadelphia, and, thereafter, stayed with the same daughter until the early part of May 1966 at an apartment house in Philadelphia. At that time, he returned to live at 2716 North Ruth Street, Philadelphia, and remained there until July 8, 1966. The record reveals beyond any question that, until July 8, 1966, decedent's "family or principal residence" was in Philadelphia.
For a period of a year or more prior to his death, decedent, 83 years of age, had been suffering from various illnesses which had physically handicapped him to the extent that he required some help in dressing and taking care of himself. On July 8, 1966, several of decedent's children took him to the home of one of his daughters, a Mrs. Frisch, who lived at 3596 Glen Way, Huntington Valley, Montgomery County, and he remained there until July 13, 1966, at which time he was removed to a nursing home in Philadelphia. He remained at that nursing home until July 16, 1966 when he was again taken to Mrs. Frisch's home in Montgomery County.*fn1 After remaining there approximately
six days, he was admitted to the Jeanes Hospital, Philadelphia, wherein he was a patient until his death, five days later, on July 27, 1966. Decedent's physical presence in Montgomery County was approximately two weeks.
On August 10, 1966, three of decedent's children probated a will, dated July 13, 1966, in Montgomery County and the register of wills of that county issued letters testamentary to these children who were nominated in such will as executors. Approximately four months later, Mrs. O'Brien and Mrs. Rothsching, two children excluded under decedent's will (contestants), filed a petition for an appeal from the probate of the will alleging (a) lack of testamentary capacity, (b) undue influence, and (c) that decedent's residence at the time of death was in Philadelphia and not Montgomery County. The latter allegation was the only one considered in the court below and, on this appeal, is the sole question before us.
After hearing, the Orphans' Court of Montgomery County found that decedent had intended to abandon his Philadelphia domicile, to make Montgomery County his new domicile and that Montgomery County at the time of decedent's death was his "last family and principal residence." Exceptions to this decree having been dismissed, the court entered the final decree from which this appeal was taken.
Initially, the court below concluded that, since the proceeding was an appeal from the probate of a will, it was the burden of the contestants to produce evidence to set aside the probate decree.*fn2 With that conclusion we do not agree.
Where the appeal challenges the validity of the will itself the burden is upon the contestants, once execution of the will has been shown and the facts of probate established, to prove the invalidity of the instrument: Brantlinger Will, 418 Pa. 236, 242, 210 A.2d 246 (1965) and authorities therein cited (testamentary capacity); Mitchell Will, 420 Pa. 218, 215 A.2d 676 (1966) (undue influence); De Maio Will, 363 Pa. 559, 70 A.2d 339 (1950) (undue influence); Brehony v. Brehony, 289 Pa. 267, 270, 137 A. 260 (1927) ...