Appeal from Order of the Court of Common Pleas, Orphans' Court Division, of Delaware County, No. 49 of 1985.
Stephen Carroll and Hans Edward Solum, Jr., Media, for appellant.
Wieand, Kelly and Hester, JJ. Kelly, J., concurs in the result.
[ 374 Pa. Super. Page 626]
Harry Sidlow died December 20, 1984, leaving a holographic will dated February 9, 1983. The will was admitted to probate in Delaware County, Pennsylvania, on December 27, 1984, and letters of administration c.t.a. were issued to the decedent's brother, Hyman Sidlow. On January 14, 1985, an earlier will, dated September 12, 1977, was filed in New Castle County, Delaware, and letters testamentary were there issued to Anita Cohen, a niece of the testator's deceased wife. Cohen then filed in the Orphans' Court of Delaware County, Pennsylvania, a petition to revoke the letters of administration c.t.a. which had been issued to Hyman Sidlow. The court, after full hearing, granted the requested revocation of letters on grounds that the testator had been domiciled in the State of Delaware at the time of his death. Hyman Sidlow appealed.
He argues (1) that Anita Cohen lacked standing to challenge the issuance of letters by the Register of Wills; (2) that the testator's domicile could not properly be challenged by a petition to revoke letters which had been issued pursuant to an unchallenged probate of a holographic will;
[ 374 Pa. Super. Page 627]
and (3) that the orphans' court erred in finding that the testator was domiciled in the State of Delaware. These issues assume their proper perspective when viewed against the different legal standards regarding the validity of holographic wills in the State of Delaware and the Commonwealth of Pennsylvania.*fn1
Harry Sidlow and his wife, Nettie, lived for approximately twenty years in an upstairs, duplex apartment on Haverford Avenue in Overbrook Park, Delaware County, Pennsylvania. During these years Harry Sidlow conducted a check cashing business, known as "Harry's Check Cashing, Inc." at 503 Main Street, Darby, Delaware County, Pennsylvania. On or about April 15, 1976, Sidlow and his wife leased an apartment situated on the other side of the Pennsylvania line, but in close proximity thereto, at 3609 Society Drive, Claymont, Delaware. Although Harry continued to conduct his check cashing business in Pennsylvania, he and his wife lived in the Delaware apartment until Nettie died in 1982. Harry did not dispose of the Delaware apartment after his wife's death, but thereafter he spent most of his nights in the apartment which was located above his place of business in Darby, Pennsylvania.
On September 12, 1977, Harry had executed a will by the terms of which he left his entire estate to his wife, if she survived him; and if she failed to survive him, he bequeathed the sum of ten thousand ($10,000) dollars to Rosalyn Epstein and the remainder of his estate to Anita Cohen, his wife's niece. An undated codicil changed the specific bequest to five thousand ($5,000) dollars to Harry Daniel Elliott, but again left the remainder to Anita Cohen.
On February 9, 1983, Harry executed an unwitnessed, handwritten will by which he purported to leave his estate
[ 374 Pa. Super. Page 628]
to his sisters, Eva and Ethel, and to his brother, the appellant, "to be used as they see fit with the exception that they remember to help their cousins if they need [ -- ] also to help my sister-in-law, Reba, the same as I have in the past." Three days later, he wrote on his copy of the earlier, 1977 will as follows: "This copy and ...