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ESTATE ARTHUR HAHN APPEAL EARLE H. HAHN (02/28/77)

decided: February 28, 1977.

ESTATE OF ARTHUR HAHN APPEAL OF EARLE H. HAHN


COUNSEL

Michael J. Clement, Norristown, for appellant.

J. Brooke Aker, Norristown, for appellee Sylvia K. Hahn.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy and Manderino, JJ. Nix, J., did not participate in the consideration or decision of this case. Pomeroy, J., filed a concurring opinion. Manderino, J., filed a dissenting opinion.

Author: Jones

[ 471 Pa. Page 250]

OPINION

This appeal arises on an election by a surviving widow against her husband's will and against his inter vivos conveyances. Decedent, Arthur Hahn, died on June 18, 1973, survived by his widow and by his son, Earle Hahn. Decedent's will and a codicil thereto, both dated April 27, 1973, were probated and letters testamentary were issued to Earle Hahn as the executor named therein. On July 6, 1973, decedent's widow filed her election against the will and any and all lifetime conveyances made by decedent. The executor filed an answer thereto urging dismissal

[ 471 Pa. Page 251]

    of the widow's election as barred by a postnuptial agreement.

Hearings to determine these matters commenced on January 8, 1975. On the third day of hearings, counsel for the executor-appellant asked the court below to strike testimony presented at the previous hearing concerning the valuation of assets. This issue was resolved when counsel for both sides agreed that evidence of valuation would be deferred until the end of the hearings. Thereafter, the electing widow sought permission to have the underlying assets of decedent's closely held family corporations valued, to which the appellant objected. At the request of counsel argument was held and briefs filed, leading to an interlocutory order of the lower court directing the executor to permit the widow's appraisers to gain access to the real estate and further directing him to make certain designated records available to the widow.

The executor responded by filing a motion to dismiss, for lack of jurisdiction, certain issues relating to the inter vivos conveyances and requests for valuation evidence. By decree dated December 18, 1975, the court below refused the motion and this appeal followed. Subsequent to the taking of this appeal, the widow-appellee filed a motion to quash which was directed to be heard at the time of oral argument on the merits.

Appellant is not appealing from a final order or decree. Nor has appellant petitioned for permission to appeal from an interlocutory order. Act of July 31, 1970, P.L. 673, No. 223, Art. V, § 501(b), 17 P.S. § 211.501(b); see also Pa.R.A.P. 312, 1311. Instead, appellant has taken this appeal as of right, see Pa.R.A.P. 311(a), claiming authorization under the Act of March 5, 1925, P.L. 23, § 1, 12 P.S. § 672:

"Wherever in any proceeding at law or in equity the question of jurisdiction over the defendant or of the cause of action for ...


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