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ESTATE IRENE LEHMAN FREYE (11/18/86)

filed: November 18, 1986.

IN RE THE ESTATE OF IRENE LEHMAN FREYE, DECEASED. APPEAL OF EASTER SEAL SOCIETY OF ALLEGHENY COUNTY, HOME FOR CRIPPLED CHILDREN AND WESTERN PENNSYLVANIA SCHOOL FOR BLIND CHILDREN (THE "CHARITIES")


Appeal from the Order entered November 18, 1985 in the Court of Common Pleas of Allegheny County, Orphan's Court, No. 5413 of 1978.

COUNSEL

Pasquale D. Gentile, Jr., Pittsburgh, for appellant.

Brosky, Del Sole and Montgomery, JJ.

Author: Del Sole

[ 358 Pa. Super. Page 526]

Irene Lehman Freye, the decedent, died on November 8, 1978. Letters Testamentary were granted to Mellon Bank, N.A. as Executor under Mrs. Freye's Will and Codicil. Her Will and Codicil bequeathed the sum of $7,500 to each of six individuals (the Pecuniary Legatees), who are the Appellees in this case. Her residuary estate was left to three charitable organizations; the Allegheny County Society for Crippled Children and Adults, (now the Easter Seal Society of Allegheny County), the Home for Crippled Children, (now the Rehabilitation Institute of Pittsburgh), and the Western Pennsylvania School for Blind Children who are the Appellants.

This matter came before the Orphan's Court of Allegheny County as a result of a request made by the Executor, Mellon Bank, at the time of audit, to determine whether the pecuniary legatees should receive the remaining balance of income and principal, or whether the residuary charities should be awarded the bulk of the interest. The Executor's Petition for Disbursement states an income balance of $23,099.72 and principal in the amount of $10,371.28. The Orphan's Court issued an Order of Court and Memorandum Opinion holding that the entire balance for distribution in Mrs. Freye's estate, principal and income, shall be distributed

[ 358 Pa. Super. Page 527]

    to the six pecuniary legatees and that nothing shall be distributed to the residuary charities.

Exceptions were filed by the residuary charities. The Orphan's Court En Banc, issued an Order dismissing the exceptions and affirming the Opinion and Order.

The Residuary Charities' appeal from the trial court's Order is now before us for disposition. In considering Appellant's arguments, we note that our scope of review on appeal from a decree entered by the Orphan's Court is extremely narrow; a decree will be modified only if it is not supported by competent or sufficient evidence, if an error of law has occurred, or if the trial court abused its discretion. In Re Estate of Fike, 351 Pa. Super. 380, 506 A.2d 398 (1986). With these guidelines before us, we address the arguments advanced by the parties.

The sole issue to be resolved is whether under the Probate, Estate and Fiduciaries Code, (PEFC) if the aggregate of all principal and income in an estate is insufficient to satisfy the pecuniary legacies, can there be any fund for distribution to residuary legatees.

Appellants contend that ยง 3543(a) and (d) of the PEFC control this case. 20 Pa.C.S.A. 3543(a) and (d) state:

(a) Pecuniary legacy. -- A pecuniary legacy bequeathed in trust shall bear interest at the rate of 5% per annum from the death of the decedent until the payment of the legacy, and when not in trust shall bear interest at the rate 5% per annum from one ...


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