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MATTER ESTATE CAREN ROSS A/K/A CAREN P. ROSS (07/01/83)

filed: July 1, 1983.

IN THE MATTER OF ESTATE OF CAREN ROSS A/K/A CAREN P. ROSS, DECEASED. APPEAL OF ROBERT ANDERMAN, GUARDIAN FOR ANTHONY JASON ROSS AND FRANCESCA F. ROSS, MINORS, DENNIS KLINGER, EXECUTOR


No. 3281 Philadelphia 1981, APPEAL FROM THE JUDGMENT ENTERED OF AUGUST 27, 1982 IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, ORPHANS NO. 30-77

COUNSEL

Richard H. Anderson, Media, for appellants.

Arnold L. New, West Chester, for participating party.

Cercone, President Judge, and Rowley and Cirillo, JJ.

Author: Cirillo

[ 316 Pa. Super. Page 39]

This is an appeal from a decree of the Court of Common Pleas of Delaware County, Orphans' Court Division, which dismissed a petition for citation sur appeal contesting the decision of the Register of Wills admitting a Will to probate.

Caren Ross died testate on September 16, 1976. Surviving her were her two children, Anthony Jason Ross and Francesca F. Ross, the appellants in the instant case. On October 10, 1978, Robert Anderman, Esquire, guardian of testator's children and by whom the instant appeal is brought on behalf of the minor children, filed a petition for citation sur appeal, claiming that the Will should not have been admitted to probate because it was procured through undue influence. A hearing was held on the petition on January 16, 1979. At the conclusion of the hearing, the Orphans' Court dismissed the petition finding that the appellants had not sustained their burden. Timely exceptions were filed and denied.

The testimony presented at the hearing on the petition established that Caren Ross executed her Will on December 11, 1974, in the office of her attorney, Norman A. Oshtry, Esquire. As to the terms of the Will admitted to probate, after making a bequest of a Cartier wrist watch to her sister, Amy Feinberg, the Will in Paragraph Third provides:

[ 316 Pa. Super. Page 40]

All the rest, residue and remainder of my property and estate, both real and personal, of whatever kind and wheresoever situated, of which I die seized or possessed, or of which I shall be entitled to dispose at the time of my death, I give, devise and bequeath to my friend, Dennis Klinger.

Paragraph Fifth of the Will appointed Dennis Klinger Executor and Norman A. Oshtry, Contingent Executor.

Paragraph Fourth of the Will provided that Amy Feinberg should inherit the residue should Dennis Klinger predecease Amy Feinberg, but the words "my sister, Amy Feinberg" were crossed out and the words "my children in equal shares, share and share alike" were added by the testatrix in her own handwriting, according to the testimony of Norman A. Oshtry, Esquire.

The appellants contend that the evidence presented at trial was sufficient to show that the Will was procured through undue influence by the appellee, Dennis Klinger, the man with whom the testatrix was living at the time the Will was executed and at the time of her death and who was the sole beneficiary of the bulk of the estate under the Will. Therefore, appellants contend that the Orphans' Court erred by failing to ...


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