Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

ESTATE EDWARD A. GALLAGHER (05/03/79)

decided: May 3, 1979.

ESTATE OF EDWARD A. GALLAGHER, DECEASED


No. 202 January Term, 1977, Appeal from Decree dated November 8, 1976, of the Court of Common Pleas of Philadelphia Orphans' Court Division, No. 1108 of 1974, sustaining Preliminary Objections and dismissing Petition.

COUNSEL

Lawrence M. Aglow, West Chester, for appellant.

Duffield Ashmead, III, Christopher H. Gadsden, Philadelphia, for appellee.

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

Author: Manderino

[ 485 Pa. Page 63]

OPINION OF THE COURT

Edward A. Gallagher died on December 18, 1969. Appellee, Provident National Bank (Provident), presented for probate a document which was handwritten on a printed will form. The trial court in the matter before us described this document as one written "in a confused and haphazard manner." The document contained writing after the signature

[ 485 Pa. Page 64]

    and contained writing in a vertical direction in the margins. When the handwritten document was presented for probate, Provident also submitted a typed "copy" of the document. Unlike the handwritten document, all the provisions in the typed copy appeared in an orderly fashion with the decedent's signature at the end thereof. This typed copy is referred to in the record as a "copy fair." Provident was granted letters of administration and proceeded to administer the estate. On May 9, 1975, the trial court's adjudication confirming Provident's first and final account was made absolute and distribution proceeded in accordance with the court's decree.

Approximately eleven months later, on April 5, 1976, appellant, Daniel Gallagher, a brother and legal heir of the decedent, filed a "Petition for Citation to Show Cause Why Audit Should not be Set Aside and Letters of Administration Revoked." Appellee, Provident, responded by filing "Preliminary Objections," following which, the trial court without holding any hearing dismissed appellant's petition.

Appellant contends in this appeal that the trial court erred in dismissing the petition without a hearing. We agree.

Appellant does not dispute the fact that when he filed his petition on April 5, 1976, the normal appeal time had expired. He argues, however, that his petition collaterally attacking probate and the trial court's final adjudication and decree of distribution, was not subject to the ordinary appeal periods because the petition alleged fraud. The trial court considered the fraud argument but dismissed the petition nonetheless stating that "a mere allegation is not sufficient" and further stating "the charge of fraud is merely an unsupported declaration."

We agree with appellant that his petition alleging fraud was timely filed and we disagree with the trial court's conclusion that the petition contained "a nebulous claim of fraud."

Appellant's petition read as follows:

"The petition of Daniel Gallagher, respectfully represents that:

[ 485 Pa. Page 651]

. Your Petitioner resides at 70 Darby Road, Paoli, Chester County, Pennsylvania and is a brother of the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.