Opinion by
Williаm and Edith Moore were married on January 22, 1966. This was the second marriage for both, and both had offspring by their former marriages; Mrs. Moore wаs a grandmother.
Edith Moore died testate on January 4, 1968, exactly thirty-one days after she executed her last will. She bequeathed her rеsiduary estate in equal shares to her daughter, Patricia Graff, to her grandson, Eric Graff, and to her granddaughter, Yalerie Graff. Patricia Graff was named executrix of her mother’s estate. On September 27, 1968, the executrix filed an inventory which valued the assets of the estatе at approximately $45,000. Included in the inventory was a Dreyfus Fund certificate having a value of approximately $4,-600.
William Moore, the surviving spouse, filed (1) a timely election to take against his wife’s will and also to take against any inter vivos transfers which he had a right to treat as testamentary, and (2) a timely petition claiming the family exemption. Patricia Graff, in her own right and as trustee for her minor children, filed (1) а petition to vacate William Moore’s election to take against (a) decedent’s will and (b) her inter vivos transfers, and (2) exceptions to William Moore’s petition for the family exemption. Both the petition and the exceptions were based upon thе allegation that William Moore, for good and valuable consideration, had agreed not to take any share of his wife’s estate, and that her will recited this agreement.
*581
It has long been the law of this Commonwealth that “an oral ante-nuptial agreement should not be found, save upon
clear and convincing proof.”* Hunt’s Appeal,
The lower Court was of the opinion that Patricia Graff did not present adequate evidence to sustain her burden of proof. We agree.
Mrs. Graff presented four witnesses to support her claims of an antenuptial agreement in and by whiсh Moore released all his rights in his wife’s estate. Two of the witnesses were disinterested; the other two, namely, Mrs. Graff and her husband, were manifestly interested in the issues and their outcome.
William Moore contended that Mr. and Mrs. Graff were incompetent to testify because of the “Dead Man’s Statute,” Act of May 23,1887, P. L. 158, §5(e), 28 P.S. §322. “The burden to prove incompetency rests upon [William Moore], competency to testify being the rule and incompetency the exception: (Rosche v. McCoy,
Since Patricia Graff is a beneficiary under decedent’s will and represents the interests of other bеneficiaries under the will, she represents the decedent’s interest and her interest is not adverse to the decedent’s interest. Therefore, neither she nor her husband was rendered incompetent to testify by the “Dead Man’s Statute.” ** On the contrary, it was the surviving spouse, William Mоore, claiming against the will, whose interest was adverse to that of the decedent. Accordingly, William Moore would have been incompetent to testify had he sought to establish any interest adverse to that of the decedent.
However, when Patricia Graff called witnesses who testified adversely to William Moore’s interests about transactions which occurred in the presence of William Moore (and a witness), William Moore was rendered competent to testify in contradiction or rebuttal of these witnesses. Act of June 18, 1891, P. L. 287, §1, 28 P.S. §325.
Hillegass Estate,
The real issue on this appeal is whether Patricia Graff has met her burden of proving the existence of an oral antenuptiаl agreement between her mother and stepfather by clear, direct, precise and convincing evidence. Whether this burden has been met is a question of law. In
Nicolazzo Estate,
“Claims against a decedent’s estate can be established only by evidence which is clear, direct, precise and convincing: Secary Estate,407 Pa. 162 , 164,180 A. 2d 572 , 573 (1962); Gadola Estate,410 Pa. 250 , 252,188 A. 2d 744 , 746 (1963); Cameron Estate,388 Pa. 25 , 29,130 A. 2d 173 , 175 (1957)...
“Appellate courts usually accept the evidentiary supported findings of an auditor or chancellor but, when the issue is whether the evidence presented was clear, direct, precise and convincing, a question of law is presented and such issue is clearly for determination by appellate courts. The appellate сourts need not accept as true an auditor’s conclusion as to whether the required norm or standard of proof has beеn met: Stafford v. Reed,363 Pa. 405 ,70 A. 2d 345 (1950); Aliquippa National Bank v. Harvey,340 Pa. 223 , 231, 232,16 A. 2d 409 , 414 (1940); Miller’s Estate,279 Pa. 30 , 38,123 A. 646 , 649 (1924).”
The testimony in the lower Court lacked any clear and convincing evidence to prove an antenuptial agreement between William and Edith Moore concerning their respective rights in each other’s estate. William Moore on numеrous occasions, both before and after his marriage to the testatrix;, told several persons that he married her becausе he loved her and not because he had any interest in her property and money. These statements are not sufficiently definite аnd certainly *584 not legally sufficient to prove an antenuptial agreement in and under which William Moore waived all of his rights in his wife’s estate.
Patricia next relies upon the third article of testatrix’s will to prove her claim. Article Third provided: “Even though my husband, William A. Moore, Sr. has considerately stated thаt he does not want any share of my estate, I give him my shares in Dreyfus Fund, Inc.” * This was the only reference in the will to any alleged agreement bеtween the testatrix and her husband concerning their respective rights in each other’s estate.
Testatrix’s aforesaid declaration in Article Third of her will does not aid Patricia Graff; it implies, if anything, that there was no agreement between the parties as to an absolute relinquishment by Moore of all his rights in and to his wife’s estate.
Without any doubt, Patricia Graff has failed to establish an oral antenuptial аgreement between her mother and stepfather by clear and convincing evidence.
Decree affirmed; each party to pay own costs.
This was the only provision made by the testatrix for her husband.
Notes
Italics throughout, ours, unless otherwise noted.
Footnote omitted.
If Patricia Graff was incompetent to testify because of the ‘‘Dead Man’s Statute,” her husband would also be incompetent to testify under the Statute, because, under Pennsylvania law, if a wife is incompetent to testify her husband is equally incompetent, and vice versa. See,
Weaver, Exr. v. Welsh,