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ESTATE ANNIE M. MCAFEE (10/03/75)

decided: October 3, 1975.

ESTATE OF ANNIE M. MCAFEE, DECEASED, LATE OF EAST NANTMEAL TOWNSHIP. APPEAL OF SHIRLEY HOYER ET AL.


COUNSEL

Kenneth L. Pocrass, Lieberman, Dimitriou & Kramer, Gerald S. Zember, Reading, for appellants.

Fred T. Cadmus, III, Cadmus & Patten, West Chester, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. O'Brien and Roberts, JJ., concur in the result. Manderino, J., filed a dissenting opinion in which Eagen, J., joined.

Author: Jones

[ 463 Pa. Page 252]

OPINION

Annie McAfee died at the age of eighty-two on March 28, 1972, leaving a holographic will dated November 28, 1964. Testatrix's will provided as follows:

"This is my wish and desire all my personal and realstate [sic] property I leave to my children to dispose of as they see fit.

After Thomas my son has been libiraly [sic] payed [sic] for careing [sic] for me the remainder devided [sic] among the other children. In case any of them become deceased before me their children to claim his or her share."

At the time the testatrix executed her will, five of her six children were living. The sixth child, George J. McAfee, had died on November 5, 1948, sixteen years before the execution of the will. George J. McAfee left surviving three children, appellants in this case, who were living at the time of testatrix's death.

At the audit of the first and final account of testatrix's estate, appellants alleged, inter alia, that they had been improperly excluded as legatees under the will, the

[ 463 Pa. Page 253]

    entire estate being divided among the five surviving children of the testatrix. A hearing was held at which the auditing judge concluded that the testatrix did not intend to include appellants as beneficiaries of her estate. Exceptions followed and subsequently were dismissed. This appeal followed.

The question raised on appeal is a narrow one. May the grandchildren of the testatrix, children of a son who died prior to the execution of the testatrix's will, take the share of ...


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