Louis J. Gagliardi, Philadelphia, for appellant.
J. Brooke Aker, Norristown, for appellee.
Raymond M. Seidel, Norristown, for Estate of Daniel A. Kelly.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, C. J., concurs in the result. Pomeroy, J., filed a dissenting opinion.
Daniel A. Kelly died June 4, 1974 leaving a duly executed will dated July 21, 1969. The will was admitted to probate in Montgomery County, Pennsylvania, on June 11, 1974.
The decedent was survived by his wife, Imelda Kelly, and several first cousins, one of whom is Mary Hay, the appellee.
In the second paragraph of the decedent's will various pecuniary bequests were made; these gifts are not at issue. The third and fourth paragraphs of the will provide:
"THIRD: I give, devise and bequeath unto my beloved wife, Imalda [sic], that share of my estate to which she would be entitled under the Intestate Laws of the Commonwealth of Pennsylvania.
"FOURTH: All the rest, residue and remainder of my estate of whatsoever kind and wheresoever situate, real, personal and mixed, I give, devise and bequeath unto Mary Hays if she is living at the time of my death, or if deceased, then to her children or the issue of any deceased children, per stirpes."
It is not contested that Mary Hays, mentioned in the fourth paragraph of the will, and the decedent's first cousin, ...