*1 or . ‘admission.’ . . The power ex- Rule 1037(c) tends through whole gamut of legal power.”
By filing writ of summons and then allowing these actions to lie dormant for 18 plaintiffs years, cannot now be allowed breathe life into a claim whose footprints were extinguished on the sands time.* To hold otherwise would create injustice, without any justification yery greatly increase litiga tion.
Judgments affirmed. Mtjsmanno
Mr. Justice dissents.
* Longfellow. Of.
Gelb Estate. *2 C. J., 1966. Before Bell, November Argued Rob- O’Brien Cohen, Eagen, Jones, Musmanno, JJ. erts, 1967. April 28, refused
reargument him with <& Lawler, Lawler, Francis James Ostroff appellants. for
Edward M. with him & David, Saul, Ewing, Bemick appellee. Saul,
Opinion by Mr. March 1967: Justice Roberts, appeal This involves the of an validity signed H. Gelb, Edward decedent, and his Fannie widow, Bazrod on March 24, Gelb, three before days their At time marriage. of their marriage Mr. then and Mrs. Gelb, Gelb, both had adult children from prior marriages. By the terms of the agreement each renounced his party interest the estate Gelb re- Mrs. other, ceived cash.1 parties together The lived from harmoniously the date of until marriage their *3 husband’s death on June 1963. 6,
On February Mrs. Gelb filed an election to take against her husband’s the will; executors filed to petition vacate this election. Following hearing at which the of the validity antenuptial agreement was the sole the issue, auditing judge permitted the widow to against take the will because he found the evidence “convincingly establishes” that: the decedent “(1) misrepresented materially to Fannie Bazrod the value of his estate at the time he induced to execute the antenuptial Fannie agreement; (2) Bazrod executed antenuptial the in reliance upon repre sentations which H. Edward Gelb made to her.” Ex ceptions were taken and the matter argued before the Court of Orphans’ Philadelphia County en banc. That adjudication,2 court affirmed the unanimously auditing judge’s 38 Pa. & lb D. C. 2d 203 (Phila. Ge O. C. appeal and this 1966), followed. 1 Originally proposed give $25,- Mr. Gelb to Mrs. Bazrod but, consulting 000, family, after members of his reduced $15,000. amount 2 change en banc did make one The court the initial ad
judication ordered consideration when it received
120 on court’s decision orphans’
Appellants attack rule evidence parol upon theories. Belying two tes- argue Man’s they Dead Statute,3 ante- B. scrivener timony Harry Esq., Berk, been not have Mrs. nuptial should agreement, Gelb, event any received. also maintain that They because binding valid and antenuptial is provision of adequate is of a lack showing there no ques- evidentiary consider the widow. We shall tions raised first. evi parol Berk, appellant’s
With Mr. respect ante- clause in the objection upon dence based value of the hus nuptial agreement stating in to the had been disclosed property fully band’s relationship of the confidential tended wife. Because an parties agreement, existing between of good from requires highest degree which each evidence, such a declaration is facie only prima faith, Snyder Estate, rebuttable extrinsic evidence, A. Es (1953); 2d McClellan 185, 67, A. 2d Ac tate, evidence Mr. parol rule, Berk’s cordingly, admitted to substantiate claim properly misrepresentation ant’s material con allegations petition tained her answer to the to strike the elec v. A. Myers tion. 2d Rubin, 366-67, *4 v. ; 561 LaCourse 366 (1960) Kiesel, Pa. 390- 559, 385, A. (1951). 77 2d 880-81 Whether Mr. 91, 877, Berk’s supports of the testimony conclusion court below clear there was convincing evidence mis v. see Palone Pa. representation, Moschetta, 387 386, 128 A. 2d 10 37, (1956), 392, not, context, of its question relevant to the admissibility. portion ber credited to
Mrs. Gelb to be distributive share auditing express judge’s with the estate. This was done of the approval. 158,
3 May 23, 1887, §5(e), L. P.S. P. 28 §322. Act
121 One of the conditions which be a must met before can be witness properly disqualified the Dead Man’s Statute is that the interest of the not witness, his simply be adverse to the decedent. testimony, Hendrickson Pa. Estate, 388 A. 2d 146- 39, 130 45, 143, 47 (1957). Even if we to accept exceptant’s were as sumption that Berk Mr. “co- receiving was a fee as an counsel”, assumption not supported record, such an interest would not render him incompetent but would merely affect his order to be credibility. adverse the interest be must one from which the wit ness will either or gain lose the direct as legal opera tion and effect of the Commonwealth judgment. Trust Co. v. 391 Pa. Szabo, 2d 272, 138 A. 281-82, 89 85, (1957) ; Gaston 361 Pa. 62 A. Estate, 2d 105, 904 (1949); Dillon’s 269 Estate, 111 Atl.
(1920). example For in Gaston Estate, we supra, held that a guardian a competent was witness even Ms though commissions would be if his con increased, tention on behalf of his minor wards was successful.4
When Mrs. Gelb was exceptants objected to called, Dead testifying under the Man’s Statute. Claim ant agrees she initially incompetent was to tes tify, Snyder 375 Pa. 100 A. 2d 67 (1953), but views her testimony coming as within the ambit of the Act of P. L. June §1, P.S. 11, 1891, §325.5 illness, of Mr. Because Berk’s court convened at his apartment purpose taking testimony, for the where he was subjected lengthy objection direct cross-examination. No respect hearing entered with until the next object failure to month later. Hence the would be an alternative ruling auditing sustaining judge. ground Mc See (1946) ; Gary Hughes 49 A. 2d 263, 267-68, Superior Bailey, A. Ct. 2d 283-84 v. proceeding any any civil before tribunal of “Hereafter party although thing to or contract . . . this Commonwealth any surviving may . . or . nevertheless remain- dead in action
122
exception
Under this
to the Dead Man’s
when
Statute
who
the decedent calls a witness
party representing
surviving
testifies
to
adversely
the interests
pres-
about a transaction
occurred
party
which
surviving
of
and
ence
the survivor
the witness,
competent
is rendered
to
in contradiction
party
testify
Szabo,
of said witness. Commonwealth Trust Co. v.
Bowman’s
391 Pa.
We turn next ato consideration of the validity the antenuptial itself. While agreements are presumptively nevertheless, valid, they, ing party any thing person to such or contract or other in- whose right terest is to the said deceased or lunatic adverse such party, competent any matter, al- shall be witness to relevant may though party it have occurred before the death of or said only adjudication lunacy, if if oc- such relevant matter may living person himself and another who be curred between may competent testify, who time of trial and remaining surviving testify upon against trial such or does so adverse, may person against or party whose interest be thus or hearing presence or occurred relevant matter if such P. competent person.” P. living Act of June or other such 287, §1. they hear not a fair Appellants did receive also contend auditing judge suggested coun claimant’s ing because below initially rested counsel after be called Gelb Mrs. sel Will, Weiss contention. merit no There case. ; (1951) Gerlach 458-59, 2dA. any merit in there Nor is 214-15, A. 2d auditing judge for claimant was an advocate suggestion impartial facts. trier of an than rather *6 depend upon provision being there either a reasonable provision, made for in the the absence of wife, or, such a full and fair the disclosure to wife of the husband’s worth. 171 A. 2d Pa. Kaufmann (1961). attacking person agree- the When the ment has of shown it made on the basis mate- presumed misrepresentations, rial it will upon misrepre- contract was entered reliance these prove sentations upon and burden to is otherwise cast party uphold seeking agreement. to McClellan 75 A. Estate, 365 2d 595 following excerpts opinion As the from the of the Philadelphia orphans’ en court banc demonstrate, exceptants, light misrepresentations, of these failed provision7 to show that a reasonable been made “Harry Esq., the wife: B. Berk, scrivener of the antenuptial agreement, testified that decedent stated to presence him in claimant’s that his were of a assets neighborhood value ‘in the of about $100,000’. This is the same amount that claimant had informed Mr. Berk that decedent had disclosed to her before she and de- agreement. cedent him consulted about the Mr. Berk urged give decedent to him a written statement of his antenuptial agreement. assets to attach to the When decedent refused to do he advised claimant that this, rely she would have on decedent’s stated valuation of his and he decedent assets, warned this state- if ment might Ms assets tvere inaccurate, this cause of antenuptial agreement to he set aside. Notwith- provision, The reasonableness of the which viewed from is agreement, depends upon particular date of the circumstances Among each case. the various factors to be considered are: husband; (a) (b) worth of the financial the financial status age parties wife; (c) the of the and the number of children intelligence parties; (e) has; (d) wife whether the each wealth. See in the accumulation aided Kaufmann (1961), A. 2d and cases cited therein. to set refused again decedent warning, this
standing that al- and reiterated writing, his assets forth ‘the intended wife he disclosed had not though ‘maybe it was worth of his estate’, nature Ms assets this $125,000’. fact, it be worth might Mrs. daughter, and his valued at $263,711, time were worth were then believed they testified that she Katz, $300,000. under- grossly deliberately
“In decedent short, to her inducement as an his assets to claimant stated Claimant relied agreement. sign in executing assets decedent’s statement upon to show There no credible evidence agreement. *7 were his assets knowledge had claimant Exceptants produced then stated him. greater than and much to vague, general testimony witnesses many more claimant knew decedent assets indicate that he disclosed to her. The auditing valuable than those not believe this nor do we. More- judge evidence; did to such is not sufficient show knowl- over, upon part contrary claimant which edge of his assets at the time of decedent’s statement Pa. execution of Kline v. 120. agreement: Kline, would have accepted “Whether claimant she had gave her, decedent known true value if the time his estate at contract antenuptial was is not us to executed, Suffice it to conjecture. say, for statement of upon she relied his his assets. Further- in our is not a opinion, $15,000 proper more, settle- for a widow who has lived with her ment husband in for three his years, her own home when estate death was marriage time excess of $260,000. Therefore, is voidable: Kauf- 131. mann Estate, the widow is
“Significantly, very poorly educated. on testified cross-examination: ‘I can She read a little for I school went few night bit. seasons’. More- testified she that she did not understand ante- over, nuptial contracts. But she be- this signed cause decedent wanted to do so and told her that it ivas both good for of them. She relied completely upon representations. decedent’s Mr. Berk testified: ‘I asked her if merely of her intended hus- she knew band’s and she said from he told assets, what only her; and that she Avas for word it’. taking
“Pennsylvania
has
always carefully protected
of a
rights
Avidow her husband’s estate, particularly,
inas
where
husband and
lived
case,
wife have
together
harmoniously
years prior to the death of
the husband.
burden
Therefore,
strong
placed
upon
who
decedent,
requested his intended wife to re
all of her
nounce
rights,
widow’s
make a full and
complete disclosure of his assets: McClellan Estate,
The of credibility the and the witnesses weight in be their the given first instance to be determined the auditing judge. by His of findings the court en like a by affirmed those of fact, banc, unsupportable are conclusive unless are jury, they Collings record. Pa. Estate, the 405 280, 175 A. 282, avlinko 2d (1961); 62, P Hanna
A. 2d (1960); 732 (1955). A. 2d The factual conclusions are amply supported above quoted by the record and of these facts application the to the law is in accord our decisions. with on affirmed. Costs the
Decree Estate. Opinion Dissenting : Oohen Me. Justice of circumstances I that believe, a reasonable wife made his second decedent case, not circum may agreement provision so claimant’s to vacate petition appellant’s and vented, Es been granted. election should have Kaufman stated we A. 2d 48 (1961), tate, 404 (1) factors: various depend upon reasonableness may the financial of husband; (2) worth financial and parties of age of the wife; (3) status of intelligence has; (4) number of children each aided or not the wife whether parties; (5) discloses The record of the wealth. the accumulation was decedent was signed, when additional and had an approximately worth $112,- of in his over interest first wife’s unsettled estate dis not token the record 000. the same while does By time of close the claimant’s estate precise value that she was the evidence reveals signed, month means. During was woman considerable daugh to the claimant told prior marriage, decedent’s receive ter that she did not need the would money she under the own. agreement because she had of her plenty On she with the same and decedent discussed occasion, the fact that claimant daughter wealthy woman and that right own she wanted her estate pass to her children. claimant maintained Further, separate bank and stockbroker in accounts and had vested sums All large money. of her mat financial were conducted from separately ters those decedent. they When both married, parties were their families of sixties their own. The parties both of intelligent people, were whom realized an ob- to their children and ligation grandchildren, and out affection of love and desired their separate estates natural pass objects to the their bounties. Accord- in a rational each manner relinquished ingly, his own *9 right share the estate of the other. Each had property accumulated of the aid the other. without deprive family other Neither wished the of which he had accumulated over the course of a life- time. Under the I circumstances, conclude that ample pro- by sum of $15,000 received claimant was vision and was reasonable the standard established Court. In Atl. this Clark’s (1931), adequacy we set forth as the test provision for the awife consideration of or whether comfortably, not it is sufficient to enable to live way after the husband’s in the same death, as she had previously prior In lived. the instant case, to the marriage, claimant lived her own home which was mortgage, clear of and which continued as the marital explained domicil for claimant and decedent. As separate completely above, the two maintained and in- dependent financial interests. Claimant’s standard of living during marriage was neither better nor marriage. worse than before the Likewise there is no changed evidence that it has as a result of the death of decedent. orphans’
A ignored crucial factor which the court strengthens my and which conviction that this ante- nuptial binding mutuality valid is the promises. party agreed rights Each to waive his in the other’s for estate return a similar covenant. validity pre Court has sustained the Indeed, of a nuptial agreement containing against mutual releases spouse though estate of each even provision payment money made no or other valu able consideration the wife and though even large as husband’s estate was twice as that of the wife. Zeigler 113 A. 2d as a in that result remarriage case, fact, security payments social per lost her wife of $46.80 her husband and when died years month, about two *10 rate the reduced reinstated benefits were her later, fully Zeigler per month. of $18.80 spouse, property and was held each disclosed significantly for alone; however, on that basis valid applicability the Court to the instant matter its recognized a Zeigler felt that the deceased husband obligation to his children to leave his estate natural en- children she knew of the before the wife and that marriage. agreement or the into the tered testimony on the record that there is Furthermore, marriage that before the knew several months claimant quarter of a million worth about dollars decedent family informed her at a his son-in-law had so because Coupling get-together. that the fact evidence with currently of the scrivener attack I must own conclude counsel, claimant was maintaining present estopped from action. she is auditing after close Moreover, injected judge himself into the conduct of the case so at least new estate, to the detriment trial granted. He for insisted counsel claim- should place stand her on witness as he in- because, ant and concern affection scrivener dicated, part taking active an the conduct of necessitated the case.
I dissent. Appellant. McKellar,
Commonwealth v.