# Krepinevich Estate > Supreme Court of Pennsylvania · January 15, 1969 · 433 Pa. 78 URL: https://www.frixlaw.com/law-library/cases/9638484 ## Case - **Full name:** Krepinevich Estate - **Court:** Supreme Court of Pennsylvania - **Decided:** January 15, 1969 - **Citations:** 433 Pa. 78; 248 A.2d 844; 1969 Pa. LEXIS 526 - **Precedential status:** Published - **Opinion:** Concurring in part by Brien - **Judges:** Bell, 'Musmanno, Jones, Cohen, Eagen, O'Brien, Roberts, Musmanno - **Cited by:** 13 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9638484 ## How later opinions describe it (automated extraction) - observing that an appellate court is in as good position as an auditor to judge the probative weight of evidence given by deposition ## Opinion text *87 Concurring and Dissenting Opinion by Mr. Justice O’Brien : I agree with the majority that appellant has proved that she is the widow and heir of the decedent. However, I disagree as to the consequences which follow. The majority would award the widow only $10,-000.00 and the one-half of the estate to which she is entitled under §2(3) of the Intestate Act, Act of April 24, 1947, P. L. 80, §2, 20 P.S. §1.2. That provides that where there is no issue, the widow gets $10,000.00 plus one-half the balance. However, §2(4) provides that where the decedent is survived by no issue, parent, brother, sister, child of a brother or sister, grandparent, uncle or aunt, then the widow is entitled to the entire estate. The majority would deny the widow the balance of the estate on the ground that she failed to prove that no parent, brother, sister, child of a brother or sister, grandparent, uncle or aunt survived the decedent. I can see no reason whatsoever for placing this burden on appellant. It is in accordance with no sensible theory of allocation of the burden of proof. It requires appellant to prove a negative. It requires her to prove facts about which she may have no way of knowing. If it be replied that the Commonwealth likewise has no means of knowing these facts, the absurdity of the majority position becomes manifest. The Commonwealth would have no way of knowing because it is not even a proper disputant as to these funds. The dispute is between the widow and all the other relatives, if there are any. It must be presumed that if these existed, they would have come forward. The proof of their existence was indeed peculiarly within their knowledge. They would be proving a positive. It makes no sense at all to give a portion of the estate to the Commonwealth because the widow did not prove the nonexistence of relatives who, if they had existed, *88 would have .been entitled to that portion. Either the widow gets it, or tbe relatives get it. They have not claimed it, so she is entitled to it. ■ It is true that in Bokey Estate, 412 Pa. 244, 250 , 194 A. 2d 194 (1963), there is language to the effect that one more distant in relationship must prove the nonexistence of those closer. There it was an alleged first cousin who had not proven the nonexistence of brothers, sisters, or their issue. However, the language in that case was purely dictum inasmuch as the alleged first cousin had not proven that he was a first cousin and thus could not take regardless of the existence or nonexistence of other relatives. Aside from that dictum in Bolcey, no other case that I have found supports the utterly unjustifiable rule opted for by the majority. Since appellant has proved that she is the widow, and since there are no other relatives, claiming as heirs, I would award appellant the entire estate. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9638484. Public record. Not legal advice.