173 A. 176 | Pa. | 1934
Argued March 27, 1934. John Lemmer transferred money, stocks and bonds from his own name to that of himself and his second wife, to whom he had been happily married for twenty years. After his death his children by his first wife attempted to set aside the transfers because he was mentally incompetent to make them. Two of his daughters were offered as witnesses to testify to matters occurring in their father's lifetime. The court below refused to permit them to do so.
By stipulation it is agreed the sole question before us in this appeal is as to the competency of decedent's two daughters to testify concerning matters which occurred prior to their father's death for the purpose of attacking the title of his transferee. Their competency is challenged under the Act of 1887, P. L. 158, section 5, clause (e), which provides: "(e) Nor, where any party to a thing or contract in action is dead . . . . . . shall any surviving or remaining party to such thing or contract, or any other person whose interest shall be adverse to the said right of such deceased . . . . . ., be a competent witness to any matter occurring before the death of said party. . . . . . "
The test of competency is the adverse interest of the witness, not the adverse testimony: Edmundson's Est.,
Appellants contend that as the transfers were obtained by undue influence and deceased was without mental capacity to make them, there existed in the father a right to have the property returned or to avoid the transactions. This right, upon his death, passed to *256 his personal representative, the executor. Therefore, the interest of the daughters was in support of or favorable to that which decedent possessed.
Appellants have failed to carefully analyze the problem. The transfer by decedent was, prima facie, a valid gift to his wife. To avoid it, the burden was on the party contesting to show, by positive proof, fraud or coercion. A consideration is presumed: Katz v. Katz,
A situation like this one was involved in Crothers v. Crothers,
To similar effect are King v. Humphreys,
The decree is affirmed. *257