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NAKONECZNY ESTATE (05/22/74)

decided: May 22, 1974.

NAKONECZNY ESTATE


Appeal from decree of Court of Common Pleas, Orphans' Court Division, of Allegheny County, No. 371 of 1970, in re estate of Michael Nakoneczny.

COUNSEL

Charles D. Coll, for appellants.

J. Robert Maxwell and Thomas F. Nelson, with them Judd N. Poffinberger, Jr., Maxwell & Huss, and Kirkpatrick, Lockhart, Johnson & Hutchison, for appellees.

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

Author: Nix

[ 456 Pa. Page 321]

Michael Nakoneczny died testate on January 26, 1970, leaving a Will dated November 5, 1956, an insurance

[ 456 Pa. Page 322]

    agreement executed the same day and two codicils dated May 4, 1966 and March 27, 1967 respectively. The Will and codicils were admitted to probate and an inventory and appraisement were filed showing a gross estate of $545,483.21. This is an appeal from the denial of exceptions filed to the Opinion, Order and Decree of Distribution by appellants, Paul Nakoneczny, son of testator, and his wife, Stella. The exceptions were dismissed and the Decree of the auditing judge was affirmed by the Court en banc on April 25, 1972.

Ademption of the Specific Devise of the Premises 3039 Preble Avenue

In paragraph four of his will testator provided: "Fourth: I give, devise and bequeath that certain parcel of real estate situate at 3039 Preble Avenue, Pittsburgh, Pennsylvania, which is presently operated as a tavern, together with all fixtures forming a part of the said realty and all equipment necessary to the operation of the said tavern, to my son, Paul Nakoneczny, if he survives me. It is my desire that my Executor secure, if at all possible, the transfer of the liquor license to my son, Paul Nakoneczny, if he is then living."

In November of 1956, testator owned the building situated at 3039 Preble Avenue, Pittsburgh. A portion of these premises was used in the operation of a restaurant and barroom by testator and the remainder served as a dwelling for him and his family. Decedent operated this business until January 1960 when he gave the business, equipment, supplies and liquor license to his son, the appellant, Paul Nakoneczny. In May of 1968, the property was acquired by the Urban Redevelopment Authority and the bulk of the proceeds were used by decedent to purchase certain bonds which he retained and remained in his possession until his death. The

[ 456 Pa. Page 323]

    auditing judge found that there had been an ademption and denied appellants' claim to the bonds that had been purchased with the proceeds derived from the ...


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