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GEARHART ESTATE (05/09/69)

decided: May 9, 1969.

GEARHART ESTATE


Appeal from decree of Orphans' Court of Berks County, No. 60298, in re estate of Carrie R. Gearhart, deceased.

COUNSEL

Edward P. Najarian, with him George B. Balmer, and Balmer, Kershner, Mogel & Speidel, for appellant.

Edward G. Wink, with him John G. Callender, for appellees.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Eagen joins in this dissenting opinion.

Author: Per Curiam

[ 434 Pa. Page 345]

Decree affirmed. Each party to pay own costs.

Disposition

Decree affirmed.

Dissenting Opinion by Mr. Justice Roberts:

I dissent from this Court's affirmance of the decree of the court below which bars a charitable gift under § 7(1) of the Wills Act of 1947, P. L. 89, § 7(1), 20 P.S. § 189.7(1), despite the long-standing, uninterrupted, and clearly expressed testamentary intent of the testatrix.

Testatrix died on September 7, 1966. Her last will, dated August 18, 1966, provided, inter alia, for a gift of $10,000 to the Reading Hospital in memory of her husband, $5,000 to be used for the maintenance of operating rooms and $5,000 to be used for maintenance and equipment in the anesthetic department. These provisions were identical to those contained in a will which testatrix had executed on August 10, 1966.

On November 5, 1965, testatrix had made a will which provided, inter alia, that her residuary estate was to go in trust to pay the income semiannually to the Reading Hospital.*fn1 This will was revoked by the will dated August 10, 1966.

Testatrix's last will was executed within thirty days of her death, and the court below decided that as a result, the charitable gifts therein were barred by § 7(1) of the Wills Act which provides: "Death Within Thirty Days -- Religious and Charitable Gifts. Any bequest or devise for religious or charitable purposes, included in a will or codicil executed within thirty days of the death of the testator shall be invalid unless all who ...


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