No. 1425 PHILADELPHIA, 1983, Appeal from an Order in the Court of Common Pleas, Civil Division, of Delaware County, No. 185 of 1983.
Raymond Peppelman, Jr., Philadelphia, for appellants.
Marc H. Jaffe, Ardmore, for appellees.
Rowley, Hester and Roberts, JJ.
[ 330 Pa. Super. Page 335]
This is an appeal from the denial of appellants' Petition to Open and/or Strike Judgment entered by Confession.
The facts of the case are as follows:
On September 5, 1979, Marguerite Grekowicz, sister of appellant Terence McGurk, died in Littleton, Colorado. At the time of her death, Mrs. Grekowicz had five children, three boys and two girls ranging in age from seven to fifteen. In her Last Will, regarding the care of her children, Mrs. Grekowicz provided:
"2.2 Trustee. I appoint TERENCE McGURK as Trustee of my Trust Estate. If he shall fail to qualify or cease to act, I appoint ROSEMARY McGURK as successor Trustee. If more than one Trustee is acting at any time, any reference to Trustee hereunder shall include all Trustees.
a. If it becomes necessary to appoint a guardian of the person, estate, or person and estate of any of my minor children with respect to any property passing under this Will or outside thereof by reason of my death, I appoint TERENCE and MINELLA McGURK, or the survivor of them, or in the event of a divorce, TERENCE McGURK, as guardian of the person and estate of such minor children, to serve without bond.
[ 330 Pa. Super. Page 336]
b. I recognize that serving as the guardian of the person and estate of my minor children may result in economic hardship to the guardian. Accordingly, pursuant to Section 1484 of the California Probate Code, I herewith specifically authorize any person nominated in this Will and serving as guardian of the person and estate of my minor children to utilize such funds of the guardianship estate as are reasonably necessary to offset any economic burdens occasioned to the guardian by virtue of his acting in such capacity. By way of illustration, but not by way of limitation, I expressly authorize the guardian to utilize the guardianship estate to expand, enlarge, or remodel the existing home of the guardian or to purchase a larger home, if reasonably required, in order to permit all of my minor children to reside with such guardian in comfort. The reasonableness of the need to enlarge the guardian's present home, or to purchase a larger one, as the case may be, shall depend in part on (i) the number and ages of children for whom the guardian of the person is required to care (including his or her own children), and (ii) the size of the guardianship estate. Such guardian may also utilize guardianship funds to pay any increases in living expenses occasioned by such guardianship, including but not limited to increases in homeowners' fire and casualty insurance, property taxes incurred by the remodeling or expansion of said guardian's home or the purchase of a new home, utility bills and food bills. All such expenses shall be charged in equal shares against the guardianship estate of each of my minor children. The guardian shall also be permitted to reside with my children in my personal residence, although title to such residence shall remain in my Trust Estate, as hereafter defined until some future disposition is made to my beneficiaries."
At the time of Mrs. Grekowicz's death, appellants and their three children resided in a three-bedroom dwelling in Pennsylvania. Appellant Terence McGurk was earning approximately ...