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MATTHEWS ESTATE (10/03/68)

decided: October 3, 1968.

MATTHEWS ESTATE


Appeals from decree of Orphans' Court of Delaware County, No. 22 of 1962, in re estate of James Z. Matthews, deceased.

COUNSEL

Joseph Rappaport, with him Rappaport, Furman & Gianopoulos, for widow, appellant.

Leonard Levin, with him Levin, Levin & Levin, for nephew, appellant.

Littleton W. Roberts, Jr., with him Harold D. Greenwell and James F. Swartz, for accountant, appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones.

Author: Jones

[ 431 Pa. Page 618]

James Z. Matthews (decedent), a resident of Delaware County, died testate on March 10, 1961, survived by his wife, Levanta Matthews. By his will, decedent devised and bequeathed his residuary estate*fn1 to the Central-Penn National Bank in trust for the following purposes: one share to be held in trust for his widow for life and the other share in trust for his nephew, Theotokis Matthews for life; upon the death of either the widow or the nephew, the income from both shares was to be paid to the survivor; upon the survivor's death, the principal was to be paid to the nephew's issue.

Decedent's widow elected to take against the will and one-half of the estate became distributable to her free of the testamentary trust and the other one-half

[ 431 Pa. Page 619]

    of the estate will be held in trust for the nephew for life with remainder to his issue.

When the personal representative's account was filed, exceptions to the account were filed both by the widow and the nephew. After two days of hearing before the Orphans' Court of Delaware County, the court appointed Walter Strine, Jr., Esq., as master and auditor to take testimony, hear legal arguments and recommend findings of fact and conclusions of law with respect to the exceptions.

Only several of the exceptions are before this Court. These exceptions are: (1) the failure of the personal representative-accountant to include among estate assets an additional sum of $53,600 received by decedent shortly before his death in connection with the sale of his partnership interest in a tavern-restaurant business; (2) the allowance of a credit to the personal representative-accountant for the payment to one Steven Zenokis, a claimant to the fund, of the balance in a bank account held in decedent's name; (3) the allowance of a credit to the personal representative-accountant for payment of income tax deficiencies for the years 1954, 1955 and 1957 (totaling $4,522.44) and a fee to an accountant for services rendered in the income tax matter. The master recommended, and the court adopted such recommendation, that exceptions (1) and (2) supra, be dismissed and that exception (3) be sustained. Upon the entry of a final decree, both the widow and the nephew filed the appeals presently before this Court.

Appeal of Levanta Matthews (The Widow)

(No. 94 January Term 1968)

The final decree in the court below was entered on June 9, 1967 and Levanta Matthews filed a timely appeal

[ 431 Pa. Page 620]

    on August 2, 1967 and gave notice of said appeal, under Rule 63 of this Court, on August 22, 1967. However, the writ of certiorari issued by this Court was not lodged in the court below until May 8, 1968, eight and one-half months after the ...


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