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August 8, 1997


Appeal from the Decree in the Court of Common Pleas of Philadelphia County, Orphans Court Division, No. 992 of 1995. Before TUCKER, J.

Before: Tamilia, J., Hudock, J., and Saylor, J. Opinion BY Tamilia, J. Hudock, J., concurs in the result.

The opinion of the court was delivered by: Tamilia


FILED AUG 08 1997

Maxine McCutcheon, heir and administratrix of the estate of Matthew McCutcheon, appeals from the October 1, 1996 Decree which dismissed exceptions and denied a motion for rehearing and review of a prior decree dismissing similar exceptions and affirming the adjudication of the account of the estate. *fn1

Matthew McCutcheon died intestate on October 6, 1989, leaving to survive him a spouse, Bernice McCutcheon, her daughter, Patricia Sanders, and two of Matthew's children, appellant and Matthew McCutcheon, Jr., who are not the children of Bernice McCutcheon. Apparently, Bernice McCutcheon died shortly after Matthew McCutcheon, thus leaving the three children as the next of kin under intestate laws. *fn2

In December, 1995, appellant, as administratrix, filed an account for the estate. Prior to this filing, however, appellant filed the disclaimer of Patricia Sanders, executed on July 11, 1995, and a petition for declaratory judgment to exclude Bernice McCutcheon from distribution of her spousal share. On April 10, 1996, the Honorable Edmund J. Pawelec entered a decree disposing of the final account of the estate. In particular, and relevant to this appeal, the court determined Patricia Sanders to have validly disclaimed any interest she had in the estate, and since the accountant was unable to state whether Ms. Sanders had any issue, awarded her one-third share to the Commonwealth of Pennsylvania, which share was to be paid into the State Treasury and held in custodial capacity subject to refund. The court also ordered no award to the estate of Bernice McCutcheon based on the accountant's uncontested position she willfully neglected and refused to support the decedent and deserted him for more than one year previous to his death.

Appellant thereafter filed timely exceptions to this decree contesting the award of Patricia Sanders' one-third share to the Commonwealth rather than the remaining heirs, and on August 22, 1996, the Orphans' Court en banc affirmed the prior adjudication and dismissed appellant's exceptions. In support of the decision, Judge Frank X. O'Brien found that the effect of the disclaimer by Patricia Sanders, by virtue of 20 Pa.C.S. § 6205 Effect of Disclaimer, subsection (b) Rights of other parties, is to deem that she predeceased the decedent. In the accompanying Opinion, Judge O'Brien chastised the accountant for creating the circumstances, through mistake or lack of understanding, which resulted in the award by the auditing Judge of Patricia Sander's share of the estate to the Commonwealth.

On September 10, 1996, appellant again filed exceptions to the August 22, 1996 decree as well as a motion for rehearing and review pursuant to 20 Pa.C.S. § 3521, Rehearing; relief granted.

On October 1, 1996, the Honorable Petrese B. Tucker denied the motion and dismissed the exceptions with prejudice.

This appeal centers around the application and interpretation of 20 Pa.C.S. § 6205, Effect of Disclaimer, which states as follows:

(a) In general. --A disclaimer relates back for all purposes to the date of the death of the decedent or the effective date of the inter vivos transfer or third-party beneficiary contract as the case may be. The disclaimer shall be binding upon the disclaimant and all persons claiming through or under him.

(b) Rights of other parties. --Unless a testator or donor has provided for another Disposition, the disclaimer shall, for purposes of determining the rights of other parties, be equivalent to the disclaimant's having died before the decedent in the case of a devolution by will or intestacy or before the effective date of an inter vivos transfer or third-party beneficiary contract, except that, when applying section 2104(1) (relating to rules of succession) or analogous provisions of a governing instrument, the fact that the disclaimant actually survived shall be recognized in determining whether other parties take equally or by representation, and except that if, as a result of a disclaimer, property passes to a fund in which the disclaimant has an interest or power which he has not disclaimed, the disclaimant shall retain his interest or power in the fund as augmented by the disclaimed property.

Id. ยง 6205(a) and (b); (emphasis added). The trial court determined that Patricia Sander's disclaimer was a valid and effective disclaimer and thus she was deemed to have died in the lifetime of the decedent pursuant to section 6205 (b). The court then found that because the accountant was unable to ascertain whether Patricia Sanders had issue, it awarded the one-third share to the ...

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