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SMITH ESTATE (03/18/71)

decided: March 18, 1971.

SMITH ESTATE


Appeal from decree of Court of Common Pleas, Orphans' Court Division, of Delaware County, No. 172 of 1969, in case of Estate of James Smith, deceased.

COUNSEL

James E. Beasley, with him Michael T. McDonnell, Jr. and C. William Kraft, III, and Beasley, Albert, Hewson and Casey, for appellant.

Stephen A. McBride, with him Garland D. Cherry, and Kassab, Cherry, Curran and Archbold, for appellee.

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

Author: Roberts

[ 442 Pa. Page 251]

This appeal seeks our review of an orphans' court decree denying appellant's petition for a change of venue. Such a decree being interlocutory, the appeal must be quashed.

The present controversy stems from appellant's status as sole beneficiary of a will dated March 11, 1967, and appellee's status as a residuary legatee of a contested after-dated will. At a hearing before the Register of Wills of Delaware County, appellant sought to establish that the date on the second page of the afterdated will had been altered and that the dispositive provisions on the first page of that will had been prepared after the execution of decedent's signature on page two. The Register was unpersuaded by appellant's evidence and admitted the after-dated will to probate.

During the Register's hearing, Joseph Pappano appeared and acted as counsel for appellee. He also testified at the hearing as scrivener of the after-dated will and as a witness to its execution. In addition to the above, Pappano was also counsel to the executor of the after-dated will and solicitor to the Register of Wills. Upon the theory that these diverse roles constituted a conflict of interest fatally infecting the entire proceedings, appellant petitioned the Register to

[ 442 Pa. Page 252]

    certify the matter to a Register of Wills of another county. The petition was denied.

An appeal of the Register's decision admitting the after-dated will to probate was then taken to the Orphans' Court of Delaware County. In an opinion announcing its decision to allow the appeal, that court stated: ". . . We hold that the contestant [appellant] has not sustained her burden of proof in this respect. However, since we allow the appeal, contestant is entitled to be heard and we will set a time for hearing, unless the parties can agree that the case may be decided upon the pleadings and the testimony taken before the Register of Wills." (Emphasis added.) Appellant thereafter petitioned for a change of venue for the reason of Pappano's alleged conflict of interest and upon the additional ground that the sole judge of the Delaware County Orphans' Court had prejudged the case by declaring prior to hearing that appellant had failed to meet her burden of proof. The petition was denied, and the present appeal taken. Appellee's motion to quash the appeal and appellant's answer thereto were subsequently filed.

In this Court appellant argues that Pappano's conflict of interest entitles her to a change of venue under the terms of the fourth paragraph of the Act of March 30, 1875, P. L. 35, § 1, as amended, 12 P.S. § 111, which directs a change of venue whenever "it shall appear to the court that local prejudice exists and that a fair trial cannot be had in such county." We are additionally referred to the third subsection of the Act of March 30, 1875, P. L. 35, § 3, 12 P.S. § 113, which provides for a discretionary change of venue when "a fair and impartial trial cannot be had in the county in which any such cause is depending." According to appellant, a ...


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