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11/07/97 ESTATE BEATRICE S. BALTER APPEAL BETTY

November 7, 1997

IN RE: ESTATE OF BEATRICE S. BALTER; APPEAL OF: BETTY ABRAMS, BENEFICIARY


Appeal from the Order of the Court of Common Pleas of Allegheny County, Orphans' Court, No. 8758 of 1994. Before KELLY, J.

Before: Kelly, J., Cercone, P.j.e., and Brosky, J.

OPINION BY CERCONE, P.J.E.:

Filed November 7, 1997

This is an appeal from an en banc order of the Orphans' Court Division of the Court of Common Pleas of Allegheny County dismissing the exceptions appellant filed after the trial Judge granted judgment on the pleadings in favor of appellee, the Estate of Beatrice S. Balter, and adjudicating as final the dismissal of appellant's claim. We affirm.

Appellant, Betty Abrams, was for many years a close friend of the decedent, Beatrice Balter. In the Formal Statement appellant filed with the trial court, Ms. Abrams alleged that in 1993, Mrs. Balter gave her a pin made of precious stones. However, Mrs. Balter subsequently learned that her son had promised the same piece of jewelry to his daughter, Mrs. Balter's granddaughter. Mrs. Balter asked appellant to return the pin, allegedly promising to make provision in her will to leave jewelry of equal value to appellant.

Mrs. Balter's will contains the following provision:

I. "I give the sum of $15,000.00 to BETTY ABRAMS if she survives me."

Last Will and Testament of Beatrice S. Balter, Paragraph First, § I at 2. Mrs. Balter also signed a Memorandum to her will leaving a "large, multi-diamond dinner ring" to her "dear friend, Betty Abrams." See Trial Court Opinion dated January 28, 1997 at 1 (quoting Memorandum to the Last Will and Testament of Beatrice S. Balter, paragraph 12). *fn1 Unfortunately, at the time of Mrs. Balter's death, the diamond ring could not be found.

Appellant made a demand on the estate for the ring or its cash equivalent. The executrix denied the claim. The matter was scheduled for a hearing on September 23, 1996. The executrix filed a motion for judgment on the pleadings. After argument on the matter, the Honorable Robert A. Kelly dismissed appellant's claim and entered judgment in favor of the Estate of Beatrice Balter. Appellant filed exceptions on October 2, 1996, docketed October 3, 1996. Judge Kelly's opinion explains that exceptions were argued before, and denied by, the Orphans' Court sitting en banc on November 12, 1996. See Trial Court Opinion at 2. Judge Kelly and the parties have treated the en banc order denying appellant's exceptions as the final decree in this matter. Because appellant was afforded the opportunity to file exceptions prior to entry of a "final order," we shall treat the appeal as though the court below properly followed both the pertinent Orphans' Court procedural rules and the relevant Rules of Civil Procedure governing equity practice. See Storti v. Minnesota Mutual Life Insurance Co., 331 Pa. Super. 26, 479 A.2d 1061 (1984) (discussing Superior Court's authority to excuse the trial court's failure to comply with the precise requirements of the Rules of Civil Procedure governing equity practice if the rights of the litigants have not been impaired thereby).

On December 11, 1996, appellant lodged a timely notice of appeal. Appellant has identified three questions for our consideration:

1. Is not a donee of a gift who returns the gift to the donor during donor's lifetime and at donor's request in exchange for donor's promise to leave donee something of equal value in donor's will a creditor of donor's estate?

2. Is a bequest by a donor to a donee in performance of donor's promise an obligation of donor's estate and not subject to ademption?

3. Is not a trier of fact bound to accept the facts alleged by a claimant against an estate as true when adjudicating a Motion for Judgment on the ...


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