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ESTATE EMERSON I. KEHLER (02/01/80)

decided: February 1, 1980.

ESTATE OF EMERSON I. KEHLER, DECEASED. APPEAL OF ETHEL KEHLER CHUPP


No. 68 January Term, 1978 Appeal from the Decree of the Court of Common Pleas of Northumberland County, Orphans' Court Division, at No. 9 December 1975.

COUNSEL

Charles H. Weidner, C. Thomas Work, Reading, Carl Rice, Sundburg, for appellant.

Sanford S. Marateck, Frank J. Konopka, Shamokin, for appellee.

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

Author: Roberts

[ 488 Pa. Page 166]

OPINION OF THE COURT

Testator, Emerson Kehler, died in April of 1975. By paragraph THIRD of his will, he disposed of the residue of his estate:

"All the rest, residue and remainder of my estate, real, personal and mixed, of whatsoever nature and wheresoever situated, I give, devise and bequeath unto my brother, RALPH KEHLER, of Reading, Pennsylvania, and my sisters, VIOLA WELKER, of Lavelle, Pennsylvania, ADA SHARTEL, of Reading, Pennsylvania, and GERTRUDE KRAPF, of Stroudsburg, Pennsylvania, and to the survivor or survivors of them, equally, share and share alike, to have and to hold unto themselves, their heirs and assigns forever."

Ralph Kehler predeceased testator, but Ralph Kehler's daughter, appellant Ethel Chupp, survived testator.

At issue on this appeal is whether appellant may take the share of the residue her father Ralph Kehler would have received had he survived testator. Appellant takes the position that testator's intent concerning the disposition of the bequest to a predeceased sibling is ambiguous. She maintains, therefore, that the relevant "anti-lapse" statute, 20 Pa.C.S. ยง 2514(9), applies. Section 2514(9) provides:

" Rules of interpretation

In the absence of a contrary intent appearing therein, wills shall be construed as to real and personal estate in ...


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