Appeal from the Order of June 4, 1986 of Superior Court at 1352 Philadelphia 1985, affirming the Order of the Court of Common Pleas of Delaware County, Orphans' Court Division, at No. 54-79 entered on December 19, 1984. Pa. Super. , 513 A.2d 1080 (1986).
R. Stuart Jenkins, Media, for appellant.
Francis R. Lord, Media, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson and Papadakos, JJ. Zappala, J., did not participate in the consideration or decision of this case. Nix, C.j., concurred in the result.
The issues presented for our consideration in this case are 1) whether the trial court erred by holding that a presumption of malicious desertion existed "upon proof that the surviving spouse had withdrawn from the marital domicile" under the forfeiture provisions of the Probate, Estate and Fiduciaries Code,*fn1 and 2) what evidentiary value is to be
accorded declarations in a decedent's will regarding a spouse's willful and malicious desertion.
Appellant, Jean Kostick, married decedent, Anthony Kostick, in December of 1943. In 1975, appellant left decedent and moved into an apartment with her children, the youngest of whom was then 17. Approximately three years later decedent passed away leaving a will which purported to disinherit his wife. The sixth paragraph of decedent's will provides:
I leave nothing to my spouse, JEAN CHRISTY KOSTICK, because for a period in excess of one (1) year prior to the signing of this, my Last Will and Testament, she wilfully and maliciously deserted me, thereby giving up any title or interest she may have had in my real or personal estate.
Those designated to take under decedent's will were his four children then living and two of decedent's sisters.
Decedent's will and codicil were admitted to probate and letters testamentary were issued. Appellant filed a notice of election to take against the will and codicil. The trial court declared her election null and void after a hearing, and in so doing: 1) determined that a presumption of malicious desertion is created under the forfeiture provisions of the Probate, Estate and Fiduciaries Code simply upon proof that a spouse has left the marital domicile, and 2) found that appellant did not sustain her burden of proving that her withdrawal from the domicile was justified. A divided panel of Superior Court, by memorandum ...