Nos. 316 and 317 January Term, 1977, Appeal from Decree of February 18, 1977 of the Orphans' Court Division, Court of Common Pleas of Montgomery County at No. 73068.
William L. Huganir, Norristown, for appellant.
Arthur M. Cooper, Asst. Atty. Gen., Philadelphia, M. Paul Smith, Raymond Pearlstine, David M. Jordan, Norristown, for appellee.
Eagen, C. J., and Roberts, Nix, Manderino and Larsen, JJ. O'Brien, J., did not participate in the consideration or decision of this case.
Rebecca Roberts Shelly died in 1971. She left two testamentary instruments, one executed in 1965 and another in 1969. Both testamentary writings made substantial gifts to "Peter S. Anthony" and named the Roberts Shelly Foundation, a charitable institution established by decedent in 1955, as the residuary beneficiary.
In a previous litigation, decedent's 1969 instrument was found invalid due to alterations and was denied probate. Estate of Shelly, 463 Pa. 430, 345 A.2d 596 (1975). In the present litigation, the heirs of decedent seek to void her 1965 will, contending in separate petitions (1) that the 1965 instrument was revoked and (2) that the 1965 will is invalid by reason of undue influence, insane delusion and unlawfulness of purpose. The charitable beneficiary and the Attorney General of the Commonwealth of Pennsylvania, as parens patriae, opposed the petitions.
On February 18, 1977, the Court of Common Pleas of Montgomery County, Orphans' Court Division, entered a decree upholding the decision of the hearing judge that decedent's estate would pass under the 1965 will. The heirs appealed. We conclude that their claims are meritless, and affirm the decree of the orphans' court.*fn1
Decedent, a long-time member of the Montgomery County Bar, was eighty-three years of age at the time of her death. The record reveals that she signed both her 1965 and 1969 instruments as "Rebecca R. Anthony," falsely representing "Peter S. Anthony" to be her husband. The fictitious "Peter S. Anthony" was in reality Peter Pallitto, a man nearly forty years younger than decedent. At all relevant times Pallitto was married to another woman and resided in Atlantic City, New Jersey. Since at least 1964 decedent had been filing federal income tax returns as "Rebecca R. Anthony" jointly with her spurious husband (hereinafter called "tax spouse"). This misrepresentation produced significant reductions in her tax payments.
In her 1965 instrument decedent gave to her "tax spouse" a lifetime interest in the income from a marital deduction trust, with a power of appointment over the trust property, and a life tenancy in the rest of the estate. In her 1969 instrument she sought to give him a life tenancy in the income from the great bulk of her estate. In both instruments decedent designated the Roberts Shelly Foundation as the residuary remainderman. The 1969 writing included a clause revoking all prior wills.
The orphans' court held that in accordance with the doctrine of dependent relative revocation the effectiveness of the revocation clause in decedent's 1969 writing was contingent upon the validity of that writing. Because the 1969 instrument was previously held invalid due to alterations, the orphans' court held that the 1965 will had not been revoked. Appellants, however, claim that in 1969, before making any ...