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WASCO ESTATE (10/12/71)

decided: October 12, 1971.

WASCO ESTATE


Appeal from decree of Court of Common Pleas of Northampton County, No. 1968-601, in re estate of John Weldy Wasco, a/k/a John Wasco, deceased.

COUNSEL

Peter Rybak, with him O'Hare, Rybak and Gallagher, for appellant.

R. S. Taylor, Jr., and Justin D. Jirolanio, with them Edward G. Ruyak, for appellee.

Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Jones. Mr. Chief Justice Bell took no part in the consideration or decision of this case.

Author: Jones

[ 444 Pa. Page 185]

John Weldy Wasco, also known as John Wasco (testator), died on May 22, 1968, and an unsigned carbon copy of his alleged will was admitted to probate in Northampton County. Owing to the designation of Lehigh University as sole beneficiary under this instrument, testator's heirs filed an appeal from the admission to probate and the grant of letters testamentary in the Orphans' Court Division of the Northampton County Court of Common Pleas. Following an evidentiary hearing and the submission of briefs, a decree nisi was entered dismissing the appeal from probate. One heir (contestant) filed timely exceptions which were dismissed by the court en banc. This appeal followed.

Two unrelated issues are pressed on appeal: (1) whether testator was a resident of Northampton County; and (2) whether the Register of Wills properly admitted an unsigned copy of testator's last will to probate, the original being lost or destroyed.

[ 444 Pa. Page 186]

Section 301 of the Fiduciaries Act of 1949 provides: "Letters testamentary or of administration on the estate of a decedent domiciled in the Commonwealth at the time of his death shall be granted only by the register of the county where the decedent had his last family or principal residence." Act of April 18, 1949, P. L. 512, Art. III, § 301, as amended, 20 P.S. § 320.301 (Supp. 1971). See, also, Act of June 28, 1951, P. L. 638, Art III, § 301, 20 P.S. § 1840.301. "The words 'family or principal residence', adopted from the Fiduciaries Act of June 7, 1917, P. L. 447, Section 2(a), have been construed to mean domicile as opposed to temporary residence: Obici Estate, 373 Pa. 567, 570, 97 A.2d 49." Publicker Estate, 385 Pa. 403, 405, 123 A.2d 655, 658 (1956). Accord, Loudenslager Will, 430 Pa. 33, 240 A.2d 477 (1968). It is contestant's position that testator's principal residence was in Lehigh County and that the court below lacked jurisdiction. So framed, our initial inquiry is whether testator died a resident of Northampton County or Lehigh County.

Contestant stresses certain facts: (1) testator, a bachelor pharmacist, owned a two-story concrete block structure in Salisbury Township, Lehigh County, and went there on Sundays and holidays when his pharmacy store located in the City of Bethlehem, Northampton County, was closed; (2) testator was listed in the Bethlehem tax records and city directory as a resident of Salisbury Township; and (3) the instrument in question recited testator's declaration that he was a resident of Salisbury Township.

We share the view of the court below that the existence of the structure in Lehigh County is of no moment. That building was without electricity, gas, plumbing or utilities. Although several books and a few pieces of furniture were found, there was no evidence of personal items. Several witnesses stated it was uninhabitable. On the other hand, testator received

[ 444 Pa. Page 187]

    all mail at the Bethlehem pharmacy and filed his federal income tax returns from that address. In addition, the store contained a gas stove, cooking utensils, shaving equipment, toilet facilities and a sink. Corroborating this evidence, several ...


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