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THOMAS MERLE CURRY v. ESTATE BETTY T. THOMPSON (08/31/84)

filed: August 31, 1984.

THOMAS MERLE CURRY
v.
ESTATE OF BETTY T. THOMPSON, AND JAMES ROBERT MCTAVISH, SR., EXECUTOR OF THE ESTATE OF BETTY T. THOMPSON, DECEASED, APPELLANTS



No. 01216 Pittsburgh 1983, Appeal from the Order of the Court of Common Pleas, Civil Division, of Clearfield County at No. 82-1820-CD.

COUNSEL

Richard D. Gearhart, State College, for appellants.

Joseph J. Lee, Clearfield, for appellee.

Cavanaugh, Popovich and Hester, JJ.

Author: Popovich

[ 332 Pa. Super. Page 366]

This is an appeal from an Order of the Court of Common Pleas of Clearfield County entering summary judgment in favor of appellee, Thomas Merle Curry, after appellee instituted an action in assumpsit against the Estate of Betty T. Thompson, Deceased (Estate) and the Executor of the Estate, James Robert McTavish, Sr. We affirm, but modify the order as to damages.

Thomas Merle Curry is the son of John A. Thompson, deceased, and Thelma Irene Thompson. His parents divorced, and both remarried. Appellee was then adopted by his mother's second husband, and his name was changed from John A. Thompson, Jr. On an unspecified date in May of 1958, appellee's father and his second wife, Betty T. Thompson, executed allegedly mutual or reciprocal wills in which each devised his or her estate to the surviving spouse, or if the spouse did not survive by sixty (60) days, then to appellee in trust. Each manifested an intention that the wills were to remain unchanged. Betty T. Thompson (Decedent) executed a subsequent will in 1981 which revoked all prior wills and which was duly admitted to probate.*fn1 Appellee was not a beneficiary under this will, and he lodged a two-pronged attack on the dispositions of the latter will. First, he contested the probate of the 1981 will. This Court at In Re; Estate of Thompson, deceased; Appeal of Curry, 332 Pa. Super. 360, 481 A.2d 655 (1984), affirmed the Order of the lower court sustaining preliminary objections in the nature of a demurrer and dismissing the appeal. The case sub judice involves an action in assumpsit against the Estate and Decedent's Executor. Both parties moved for summary judgment, and the lower court entered an Order

[ 332 Pa. Super. Page 367]

    granting summary judgment in favor of appellee. This appeal followed.

The pertinent provision of the 1958 will of Decedent reads as follows:

"ITEM II: I give, devise and bequeath my entire estate, both realty and personalty, of whatever nature to my husband, John A. Thompson, if he survives me by sixty days. In the event of simultaneous death or death resulting from common disaster, with my husband, or if my husband dies within sixty days of my death, or if my husband predeceases me, then I direct that my entire estate shall be disposed of as follows:

A. I give to my trustee hereinafter named my entire estate, both realty and personalty, in trust to hold, invest and reinvest the same, collect the income, and after paying all expenses incident to the management of the trust, to use and apply as much of the net income and principal as may be necessary in the sole discretion of my trustee for the support, well-being and education of John A. Thompson, Jr., now known under adoptive name of Thomas Merle Curry, residing at 208 Marion Avenue, Punxsutawney, Pennsylvania, and as he arrives at the age of twenty-five, to pay him the principal and any accumulation of income, less such amounts as may have been expended for his benefit. If he should die without leaving issue before attaining the age of twenty-five, I direct that the balance of principal and income shall fall into the residue of my estate. I direct ...


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