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FISHER ESTATE (04/22/71)

decided: April 22, 1971.

FISHER ESTATE


Appeal from decree of Court of Common Pleas, Orphans' Court Division, of Dauphin County, No. 355 of 1968, in re Estate of Charles J. Fisher, deceased.

COUNSEL

Jay R. Braderman, for appellant.

James B. Pannebaker, with him Jon A. Yost, Christian S. Erb and Pannebaker & Andrews, and Metzger, Wickersham, Knauss & Erb, for appellees.

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

Author: Jones

[ 442 Pa. Page 422]

Decedent, a Dauphin County resident, died intestate on March 26, 1968, and the Harrisburg National Bank and Trust Company was appointed administrator of his estate. In its petition for distribution accompanying its first and final account, the administrator proposed distributing the entire estate to decedent's only child in derogation of the rights of his surviving spouse, who claimed her intestate share under Section 2(2) of the Intestate Act of 1947 (Act of April 24, 1947, P. L. 80, § 2(2), 20 P.S. § 1.2(2)). After the surviving spouse (appellant) filed objections to this petition, a hearing and oral argument were held before the Orphans' Court Division of the Dauphin County Court of Common

[ 442 Pa. Page 423]

Pleas. Subsequent thereto, the court below overruled these objections, concluding appellant had forfeited her intestate share under Section 6(b) of the Intestate Act (Act of April 24, 1947, P. L. 80, § 6(b), 20 P.S. § 1.6(b)). This appeal followed.

Appellant married decedent on December 28, 1963, and took up residence at decedent's home along with decedent's sixteen-year-old daughter by a previous marriage. However, appellant and her stepchild were soon at odds. This bitterness culminated when appellant announced on March 21, 1964, less than three months after the marriage, that she was leaving. Although appellant returned but once to remove her furniture, appellant and decedent dated intermittently. While it is disputed whether decedent ever asked appellant to return, appellant advised decedent she would not return until the stepchild departed.

During the course of these stepmother-stepchild arguments, appellant testified that decedent always sided with his child. On the other hand, another witness testified that decedent disciplined his child by sending her to her room after these arguments and, on at least one occasion, "grabbed her and shook her and sent her up to her bedroom."

Appellant later instituted an action for nonsupport against decedent and the Court of Quarter Sessions entered a consensual support order of $10.00 per week for appellant. Thereafter, decedent filed a complaint in divorce on the grounds of indignities. However, nothing further transpired between the parties.

In this area of the law we begin with the recognition that: "At common law no degree of misconduct by the surviving spouse resulted in a forfeiture of his or her rights in the estate of the deceased spouse. Forfeiture is based in statutes." Hudak Estate, 383 Pa. 278, 280, 118 A.2d 577, 579 ...


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