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10/09/97 ESTATE HENRY SMERTZ A/K/A KELLY SMERTZ

October 9, 1997

IN RE: ESTATE OF HENRY SMERTZ, A/K/A KELLY SMERTZ; APPEAL OF: ANN SMERTZ


Appeal from the Order of the Court of Common Pleas of Lackawanna County, Orphans, at No. 155 of 1996, entered December 17, 1996.

Before: Cavanaugh, Eakin and Montemuro,* JJ. Opinion BY Eakin, J.

The opinion of the court was delivered by: Eakin

OPINION BY EAKIN, J.:

Filed 10/09/97

Ann Smertz ("Wife") appeals from the order denying her petition for declaratory relief and refusing to proclaim her sole heir and beneficiary of the estate of Henry Smertz, a/k/a Kelly Smertz. We affirm.

Henry "Kelly" Smertz died testate December 28, 1992, leaving as survivors his wife, two siblings, and various cousins, nephews and nieces; his will provided, in part:

THIRD: I give, devise and bequeath to my wife, Ann Smertz, providing she survives me, that amount equal to the least possible sum required to satisfy under law governing my Will at my decease, any and all entitlements, interests, claims, elections, and/or rights, of my wife, Ann Smertz in my Estate, should she survive me and not otherwise forfeit her eligibility. It is my intention, purpose and direction that my Estate, under this Last Will and Testament, only that amount which is required by the provisions of law upon circumstances existing at the time of my decease, to be paid over and transferred unto her to relinquish whatever claim she may have as my surviving spouse if she is eligible to have such claim against my Estate, and nothing further, except said minimum.

(emphasis added)

FOURTH: All the rest, residue and remainder of my Estate, and wheresoever situate, I give, devise and bequeath as follows:

A. My Executor shall set aside in the exercise of his sole discretion, so much of the said residue of my Estate as may be necessary to provide for the comfort and well-being of my aunt, Blanche Smertz, provided she, Blanche Smertz, is living at the time of my decease. My Executor may set aside all the rest, residue and remainder of my Estate to its exhaustion if, in the exercise of the discretion of my Executor, he deems same necessary or advisable for the purposes of the well-being and comfort of my aunt, Blanche Smertz.

B. Upon the death of my aunt, Blanche Smertz, as to any of said rest, residue and remainder set aside for her, Blanche Smertz, which remains unexpended and as to any part of the residue not otherwise set aside by my Executor for said Blanche Smertz, the same shall be divided equally among .... (approximately fifteen cousins, nieces and nephews).

(emphasis added)

On June 13, 1996, Wife filed a petition for declaratory judgment asking the Orphans' Court to interpret these paragraphs of the will and proclaim her sole beneficiary of the estate. The Orphans' Court denied the petition, and this appeal followed wherein Wife raises the following issues for review:

1) Did decedent's estate pass entirely to his surviving spouse, as sole specific beneficiary, pursuant to ...


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