Appeal from the Judgment entered February 14, 1985 in the Court of Common Pleas of Cambria County, Orphans County, at No. 11-75-886.
James A. Nelson, Assistant District Attorney, Ebensburg, for appellants.
Francis J. Leaney, Ebensburg, for appellee.
Beck, Popovich and Handler,*fn* JJ.
[ 344 Pa. Super. Page 540]
This is an appeal from an order of the Court of Common Pleas of Cambria County distributing decedent's property. Hazel M. Sellers died testate on October 28, 1975. She was survived by a brother, William Sibert, and two sisters, Pauline Frontino and Dorothy Sibert. Three other brothers predeceased Sellers; each brother left surviving children. Decedent's Last Will and Testament, dated March 19, 1953, provided in pertinent part:
SECOND: All the rest, residue and remainder of my estate, real, personal, and mixed, of which I die seized or possessed, or to which I may be entitled at the time of my death, and wheresoever situate, I give, devise and bequeath unto my mother, JOSEPHINE SIBERT, and to my brothers and sisters, namely: EDWARD SIBERT, WILLIAM SIBERT, DOROTHY SIBERT, PAULINE FRONTINO, ROBERT SIBERT, AND DONALD SIBERT,
[ 344 Pa. Super. Page 541]
to have and to hold absolutely, share and share alike. In the event that my mother should predecease me, then her share shall be divided equally among my brothers and sisters.
Josephine Sibert also predeceased the decedent. Pauline Frontino, executrix of the decedent's estate, filed a proposed distribution of the estate. Frontino, William Sibert and Dorothy Sibert were listed as the proposed distributees. The children of Edward Sibert, one of the predeceased brothers, objected to the list of proposed distributees. The trial court held that the bequests to the brothers who predeceased the testatrix lapsed by operation of the will and by operation of law. Exceptions were filed and subsequently denied by the court en banc.
Appellants present two issues for our review:
1) Since Edward Sibert, Donald Sibert and Robert Sibert predeceased the decedent, do their respective shares of the estate devolve to their children?
2) Did the trial court err in holding that a class gift was intended when extrinsic evidence outside the Will was introduced into testimony that making the gift of bonds to some nieces and ...