Appeal from the Judgment entered on September 16, 1986, in the Court of Common Pleas of Cumberland County, Civil Division, at No. 2096 Civil 1985.
William J. Myers, Indiana, for appellants.
Robert F. Claraval, Harrisburg, for appellee.
Wieand, Beck and Cercone, JJ.
[ 366 Pa. Super. Page 285]
This is an appeal by the heirs-at-law of the late Kathryn B. Orstein challenging the trial court's construction of decedent's last will and testament. At issue is whether under the terms of the will decedent's estate passed to a relative of her ex-husband.
The relevant facts are not in dispute. Kathryn B. Orstein married W. Lee Orstein in 1966. On August 30, 1978, she executed a will which reads in part as follows:
I -- I direct the payment of all my just debts and funeral expenses out of my estate as soon as may be practical after my death.
II -- I devise and bequeath all of my estate of whatever nature and wherever situate unto my husband, W. Lee Orstein.
III -- Should my said husband predecease me, then I devise and bequeath all of my estate of every nature and wheresoever situate unto my issue per stirpes.
IV -- If my said husband predeceases me and we have no issue, then all of my estate shall be distributed to my husband's uncle, Stanley Selfon.
V -- I appoint my husband, W. Lee Orstein, Executor of this, my Last Will and Testament. Should my said husband fail to qualify or cease to act as such, then I appoint the said Stanley Selfon to act in this capacity. Neither of my personal representatives shall be required to post bond in this or any jurisdiction.
[ 366 Pa. Super. Page 286]
The Stanley Selfon referred to in the final two paragraphs is the husband of W. Lee Orstein's aunt, and thus W. Lee Orstein's uncle by marriage.
The Orsteins divorced in 1981. Decedent, however, did not revise her will. She died without issue on February 25, 1984. She was survived by both W. Lee Orstein and Stanley Selfon.
The parties to this suit agree that -- as decedent's ex-husband -- W. Lee Orstein is barred by operation of law from receiving a bequest or serving as an executor. See 20 Pa.Cons.Stat.Ann. § 2507(2) (Purdon 1975) (discussed infra). Paragraph II of the will is therefore ineffective. The parties also agree that since decedent had no issue paragraph III of the will is ineffective. The present controversy concerns Mr. Selfon's rights under paragraph IV.
On March 20, 1984, the will was admitted to probate and letters testamentary were issued to Mr. Selfon. Selfon administered the estate as executor. Pursuant to paragraph IV, he ...