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BICKERT ESTATE (05/25/72)

decided: May 25, 1972.

BICKERT ESTATE


Appeal from order of Court of Common Pleas, Orphans' Court Division, of Montgomery County, No. 72123, in re estate of Marie J. Bickert; appeal of Mary F. Trowbridge.

COUNSEL

Marvin L. Wilenzik, with him Gerber, Davenport & Wilenzik, for appellant.

John P. Yatsko, with him Fitzgerald & Yatsko, for appellees.

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

Author: Pomeroy

[ 447 Pa. Page 469]

The question presented by this appeal is whether in the absence of a gift over in a will, the prior death of the sole legatee, testatrix' sister, caused the devise to

[ 447 Pa. Page 470]

    her to lapse and thus pass by intestacy to the two children of the testatrix, or whether testatrix' niece, the daughter of the named residuary legatee, takes through her mother.

On December 26, 1970, the decedent, Marie J. Bickert, and her sister, Frances Sweeney, both in their seventies, were found dead in the house they shared in Lower Frederick Township, Montgomery County. Which sister died first is unknown, but under the Uniform Simultaneous Death Act Marie Bickert, the testatrix, is presumed to have survived.*fn1

Mrs. Bickert died testate, survived by two adult sons, William F. Bickert and Harry F. Bickert, appellees herein. Her will, dated July 7, 1969, named Frances Sweeney as the only beneficiary. In pertinent part the will provided:

"2. I devise my premises where I now live in Lower Frederick Township, together with the contents of said real estate, together with any insurance policies thereon, to my sister, Frances Sweeney.

"3. I devise and bequeath the rest, residue and remainder of my estate, of every nature and wherever situate, to my sister, Frances Sweeney." There was no gift over in the event that Mrs. Sweeney predeceased the testatrix.

The will was duly probated, and, the corporate fiduciary named as executor having renounced, the Register of Wills appointed the appellees as administrators c.t.a. of their mother's estate. Thereupon Marie ...


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