Appeal from Order entered August 30, 1988, in the Court of Common Pleas of Montgomery County, Orphans, No. 46-87-2655.
Jeffrey C. Karver, Boyertown, for appellant.
J. Brooke Aker, Norristown, for Reifsneider, Participating Party.
McEwen, Olszewski and Melinson, JJ.
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This is an appeal from an order entered by the Court of Common Pleas of Montgomery County denying appellants' request for permission to take against the will of Clarence Reifsneider as attorneys-in-fact pursuant to a durable power-of-attorney
[ 386 Pa. Super. Page 96]
executed by their mother, Audrey Reifsneider.
The facts as found by the trial court are as follows: Clarence W. Reifsneider died on October 22, 1987, survived by his wife, Audrey E. Reifsneider. His will, dated December 19, 1986, was admitted to probate by the Register of Wills of Montgomery County on November 5, 1987. On April 20, 1988, Audrey Reifsneider's daughters, Carol I. Saul and Sharen Greth, filed a notice of election to take against the will of Clarence Reifsneider as attorneys-in-fact under a durable power-of-attorney executed by their mother on April 28, 1986. On May 13, 1988, Carol Saul and Sharen Greth filed a petition seeking court approval to make the election in which they indicated their mother's illness and hospitalization had necessitated their actions.
Stauffer B. Reifsneider, executor under the will of Clarence W. Reifsneider, filed both a petition to strike the election and an answer to the petition for court approval to file same. In these pleadings the executor contended, inter alia, the power-of-attorney did not authorize the filing of an election; the election was not timely filed and was therefore barred; and/or the right to elect was barred by an antenuptial agreement between Mr. and Mrs. Reifsneider dated June 28, 1977. The responsive pleadings filed by the attorneys-in-fact contained denials of these contentions and claimed the aforementioned antenuptial agreement was invalid.
On June 24, 1988, the executor filed a motion for judgment on the pleadings seeking dismissal of the election to take against the will. After argument, the court granted the motion by order dated August 30, 1988, from which the attorneys-in-fact now appeal.
On appeal, the attorneys-in-fact contend that: (1) the power-of-attorney executed by Audrey E. Reifsneider contained the language enabling them to file an election to take against the will of Clarence Reifsneider; and (2) they timely ...