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ESTATE HUGH L. KIRK APPEAL RICHARD KIRK (01/08/88)

filed: January 8, 1988.

IN RE ESTATE OF HUGH L. KIRK; APPEAL OF RICHARD KIRK


Appeal from Judgment of the Court of Common Pleas, Orphans' Court Division, of Beaver County, No. 4-86-306.

COUNSEL

Robert Glessner, York, for appellant.

Frank S. Kelker, Assistant District Attorney, Rochester, for appellee.

Wieand, Montemuro and Popovich, JJ.

Author: Wieand

[ 369 Pa. Super. Page 516]

The novel issue in this appeal is whether a widow who has elected to "accept and acquiesce" in the provisions of her deceased husband's will and who has released "my share of any marital property and all other claims that I may have upon any of the property disposed of by the Will" is barred from inheriting as an heir when a partial intestacy occurs. The Orphans' Court held that the release was effective only with respect to property passing under the will and did not prevent the widow from inheriting as her deceased husband's heir. A nephew who, except for the widow, was the decedent's closest relative appealed. We affirm.

Hugh L. Kirk, the decedent, had been married to Bertha M. Kirk. No children were born of their marriage. However, Bertha had been married previously and had a daughter from her prior marriage. On or about November 11, 1982, Bertha's physical condition necessitated that she be admitted to the Beaver Valley Geriatric Center. On February 14, 1983, Hugh executed a will which expressly made no provision for Bertha but did contain a residuary clause in favor of Gloria Fitch, who was Bertha's daughter. On the same day on which this will was executed, Bertha signed a release of her marital rights so that her husband's property could pass upon his death to Bertha's daughter. This release provided as follows:

I, BERTHA M. KIRK, of the County of Beaver and Commonwealth of Pennsylvania, wife of HUGH L. KIRK, the Testator named in the foregoing Will dated the 14th of February, 1983, hereby certify that I have been read the foregoing Will of my husband and fully understand that he disposes not only of his separate property but also of our marital property now owned or hereafter to be

[ 369 Pa. Super. Page 517]

    acquired, if any, including my half of that property. Being fully satisfied with its provisions, I hereby assent to each and all of the provisions, conditions, gifts, devises, and legacies mentioned and contained in the foregoing Will, and I hereby waive and relinquish all right, claim, and demand as his wife and heir-at-law or otherwise to any of the benefits of the Estate of HUGH L. KIRK, and I hereby elect to accept and acquiesce in the provisions of the Will, waiving all claims to my share of any marital property and all other claims that I may have upon any of the property disposed of by the Will.

Unfortunately, matters of life and death proved to be unpredictable. Gloria Fitch died in 1984, predeceasing her mother and the testator. The testator died on May 16, 1986 without having changed his will. He was survived by his widow and by three nephews and a niece. The decedent's will was admitted to probate. Because Gloria Fitch was not the testator's child, however, the residuary gift lapsed by virtue of her prior death.*fn1 With respect to the residue of the testator's estate, therefore, a partial intestacy occurred. The executor determined that the residue of the estate should be distributed to the widow under the provisions of the Pennsylvania Decedents, Estate and Fiduciaries Act.*fn2 Richard Kirk, a nephew of the testator, filed exceptions which the court dismissed. From the order directing distribution to the widow, Kirk appealed. He argues that the surviving widow released all interest in her deceased husband's estate and, therefore, should be barred from receiving an intestate share in the estate. This requires that we interpret the language of the release.

In Sparler v. Fireman's Fund Ins. Co. of Newark, 360 Pa. Super. 597, 521 A.2d 433 ...


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