Appeal from decree of Orphans' Court of Philadelphia County, No. 3494 of 1962, in re estate of Samuel Mackarus, deceased.
William Kanter, with him Alan S. Rosenthal, Edwin L. Weisl, Jr., Assistant Attorney General, and Drew J. T. O'Keefe, United States Attorney, for United States of America, appellant.
James Francis Lawler, with him Ostroff & Lawler, for individual appellants.
Francis J. Gafford, Deputy Attorney General, with him Herbert W. Salus, Jr., Special Assistant Attorney General, and William C. Sennett, Attorney General, for Commonwealth, appellee.
Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Chief Justice Bell and Mr. Justice Roberts concur in the result. Mr. Justice Cohen took no part in the consideration or decision of this case.
Samuel Mackarus died intestate on January 5, 1962 in the Veterans' Administration Hospital in Cincinnati, Ohio. Letters of administration were granted to Provident Tradesmens Bank and Trust Company. The administrator's account showed a combined balance of principal and income of $88,282 derived from disability compensation paid decedent following his service in World War I.
Three parties claim the estate: (1) Marie K. Budnik and Marina Budnik, claiming under the Intestate Act of April 24, 1947, P. L. 80, § 1.17, 20 P.S. § 1.17, as decedent's nieces and next of kin; (2) the Commonwealth of Pennsylvania, claiming alternatively under section 1314 of The Fiscal Code of April 9, 1929, P. L.
, 72 P.S. § 1314, or under the "Iron Curtain Act" of July 28, 1953, P. L. 674, § 2, 20 P.S. § 1156; (3) the United States, as trustee for the General Post Fund, claiming under Act of Congress of June 25, 1910, as amended, 36 Stat. 736, 38 U.S.C. § 5220 (1959).
Decedent was born in the Ukraine, emigrated to the United States prior to World War I and served in the United States Army during that war. After the war he was confined to the United States Public Health Service Hospital in Philadelphia because of mental illness. The Philadelphia Court of Common Pleas declared him an incompetent February 29, 1921 and he remained hospitalized in the care of the Veterans' Administration continuously until his death in 1962. In 1926, an investigation by the Veterans' Administration revealed that the decedent's wife and son were both dead but that his mother, brother and sister were still alive in the Ukraine.
The three claimants make the following contentions: (1) Maria K. Budnik and Marina Budnik, through their Philadelphia counsel, presented documentary evidence, consisting of purported copies of public records of births, marriages and deaths, to eliminate any kin closer in degree than themselves and to establish their own relationship, all of which documents were authenticated by the American Consul in Moscow. No witnesses appeared in their behalf. Their counsel also presented a petition for a citation to be directed to all adverse parties to show cause why a commission should not be issued or letters rogatory be allowed to obtain the testimony of the two claimants in the Ukraine. The Orphans' Court of Philadelphia County denied this petition. ...