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ESTATE BERTRAM W. KORN (08/10/84)

filed: August 10, 1984.

ESTATE OF BERTRAM W. KORN, DECEASED. APPEAL OF RITA P. KORN. ESTATE OF BERTRAM W. KORN, DECEASED. APPEAL OF SAMUEL S. FELDGOISE, CHARLES C. POLLACK AND I. JEROME STERN, EXECUTORS OF THE WILL OF BERTRAM W. KORN, DECEASED


No. 852 Philadelphia, 1983, Appeal from the Decree of February 28, 1983, Court of Common Pleas, Montgomery County, Orphans' Court Division No. 81, 998. No. 990 Philadelphia, 1983, Appeal from the Decree of February 28, 1983, Court of Common Pleas, Montgomery County, Orphans' Court Division No. 81, 998.

COUNSEL

G. David Rosenblum, Philadelphia, for appellant (at No. 852) and for participating party (at No. 990).

Robert J. Stern, Philadelphia and M. Paul Smith, Norristown, for appellants (at No. 990) and for participating parties (at No. 852).

Spaeth, President Judge, and Cirillo and Johnson, JJ. Spaeth, President Judge, filed a concurring and dissenting opinion.

Author: Johnson

[ 332 Pa. Super. Page 157]

This action involves an appeal and cross-appeal from a Final Decree entered by the Orphans' Court Division of the Court of Common Pleas of Montgomery County on February 28, 1983. That order dismissed exceptions to the adjudication nisi of August 30, 1982. Korn Estate, 3 Fiduc. Rep.2d 138 (1983). Rita P. Korn (Appellant at 852 Philadelphia, 1983 and Appellee at 990 Philadelphia, 1983) is the widow of the late Rabbi Bertram W. Korn who died on December 11, 1979. Mrs. Korn, who married Rabbi Korn on February 9, 1971, elected to take against the will as the surviving spouse under 20 Pa.C.S. § 2203. Mrs. Korn complains that she was not awarded her proper one-third elective share by the trial court. The Executors of Rabbi Korn's will (Appellees at 852 Philadelphia, 1983 and Appellants at 990 Philadelphia, 1983) also challenge a portion of the trial court's determination.

Mrs. Korn's claim is premised on 20 Pa.C.S. § 2203 which sets forth in relevant part:

(a) Property subject to election. -- When a married person domiciled in this Commonwealth dies, his surviving spouse has a right to an elective share of one-third of the following property:

(1) Property passing from the decedent by will or intestacy . . . .

[ 332 Pa. Super. Page 158]

(3) Property conveyed by the decedent during his lifetime to the extent that the decedent at the time of his death had a power to revoke the conveyance or to consume, invade or dispose of the principal for his own benefit . . . .

(5) Survivorship rights conveyed to a beneficiary of an annuity contract to the extent it was purchased by the decedent during the marriage and the decedent was receiving annuity payments therefrom at the time of his death.

(6) Property conveyed by the decedent during the marriage and within one year of his death to the extent that the aggregate amount so conveyed to each donee exceeds $3,000, valued at the time of conveyance . . . .

(b) Property not subject to election. -- The provisions of subsection (a) shall not be construed to include any of the following except to the extent that they pass as part of the decedent's estate to his personal representative, heirs, legatees or devisees: . . . .

(2) The proceeds of insurance, including accidental death benefits, on the life of the decedent.

(3) Interests under any broad-based nondiscriminatory pension, profit sharing, stock bonus, deferred compensation, disability, death benefit or other such plan established by an employer for the benefit of its employees and their beneficiaries . . . .

(5) Survivorship rights conveyed to a beneficiary of an annuity contract to the extent it was purchased by the decedent during the marriage and the decedent was receiving payments therefrom at the time of his death.

At the time of his death Rabbi Korn's assets included, inter alia, an extensive library of approximately 1,500 books relating to American Jewry. Mrs. Korn alleges that the lower court erred in establishing the value of the library at $36,946.25. At the evidentiary hearings held on Mrs. Korn's Objections to the First Account and Petition for Adjudication, expert testimony was presented on behalf of both Mrs. Korn and the Executors. Mrs. Korn's expert,

[ 332 Pa. Super. Page 159]

Clarence Wolf, testified that in his opinion the library was worth $36,946.25 on an individual book basis, but the entire library taken as a whole was worth $45,000 (R. at 112a).

The expert for the Executors, Dr. David Szewczyk, appraised the library at $31,917.50. He opined that it would be very difficult to sell the library as a unit because of the library's mix of scholarly and rare materials (R. at 139a-140a). In other words, Dr. Szewczyk did not believe the library as a whole was worth more than the aggregate value of its individual volumes. The trial court accepted the $36,946.25 value proffered by ...


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