176 Pa. Super. 513 | Pa. Super. Ct. | 1954
Opinion by
This is an appeal from a decree of the Orphans’ Court of Lancaster County dismissing exceptions to an adjudication filed in the estate of Alice Swenk, deceased. At the audit the appellants claimed the entire balance for distribution as residuary legatees under the decedent’s will. The court below, after an award to the Commonwealth of Pennsylvania for old age assistance and payment of transfer inheritance tax, awarded the balance in equal shares to appellees as third party beneficiaries under a contract between the decedent and Elizabeth Fisher.
The facts are these: In the year 1950, and for many years prior thereto, Alice Swenk lived in the home of Elizabeth Fisher at 424 North Charlotte Street in the City of Lancaster. Both ladies were advanced in years and in poor health. They were not related by blood or affinity. Elizabeth Fisher was a childless widow. Her nearest relatives were a nephew, Ray H. Ulmer, who predeceased her, Ms wife, Jeanette B. Ulmer, and their daughter, June D. Ulmer. Alice Swenk was unmarried and had no known relatives. On November 28, 1950 Miss Swenk and Mrs. Fisher executed wills in the Charlotte Street residence in the presence of F. Lyman Windolph, Esq., who had previously acted as Mrs. Fisher’s attorney, Dr. Frank A. Veri, physician of both Miss Swenk and Mrs. Fisher, Jeanette B. Ulmer, widow of Ray H. Ulmer (who died June 1,1951), and Edward J. Phelan and Leah Mae Phelan, his wife. In the will of November 28, .1950 Miss Swenk gave her entire es
The question involved in this case is whether the evidence is sufficient to sustain the finding of the court below that a contract was made for the execution of mutual, irrevocable wills.
Contracts for the execution of mutual or reciprocal wills which are to be irrevocable are valid when properly proved, and they are enforced in most jurisdictions. The rule is stated in McGinley’s Estate, 257 Pa. 478, at page 483, 101 A. 807, at page 808, where our Supreme Court said: “It is well settled that one may enter into a valid contract to dispose by will of his property, real or personal, in a particular way, and that such will is irrevocable and the contract will be specifically enforced. There are many examples of the recognition of this doctrine in this State and other states: Cawley’s Est., 136 Pa. 628; Smith v. Tuit, 127 Pa. 341; Wright’s Est., 155 Pa. 64; Shroyer v. Smith, 204 Pa. 310; Lewallen’s Est., 27 Pa. Superior Ct. 320; Park v. Park, 39 Pa. Superior Ct. 212; Frazier et al. v. Patterson et al., 27 L.R.A. (N.S.) 508, and notes. In Thompson on Wills, Section 28, the learned author says: Mutual wills, that is, where two persons execute wills reciprocal in their provisions, but separate instruments, may or may not be revocable at the pleasure of either party, according to the circumstances and understanding upon which they were executed. To deprive either party of the right to revoke such mutual wills, it is necessary to prove such wills were executed in pursuance of a contract or a compact between the parties and that each is the consideration for the other.’ When such contract has been proved, the will becomes a writing containing the terms of the agree
Appellants contend there was insufficient testimony produced to show that the wills were irrevocable and in support of their contention rely on Culhane’s Estate, 133 Pa. Superior Ct. 339, 2 A. 2d 567, which held inter alia that the testimony in the case was “clearly insufficient to support a finding that a contract was made for the execution of mutual, irrevocable wills.” However, in Culhane’s Estate, supra, the only evidence offered to establish the making of a contract was that of Emma Sliter who testified that she had been a subscribing witness to identical wills of the decedent and her husband. This Court stated, at page 349: “The testimony of Miss Sliter throws no light upon what actually passed between Michael Cul-hane and Catherine Culhane when the wills were made. Her testimony consists only of her interpretations of their statements and actions.”
In the instant case the uncontradicted testimony discloses that in July, 1950 both Mrs. Fisher and Miss Swenk were in poor health and consulted their physician, Dr. Frank A. Veri, about making wills. Dr. Veri testified that Mrs. Fisher desired to have her estate go to the Ulmer family, but if she predeceased Miss Swenk, “. . . she would like to see that Miss Swenk had adequate food and shelter.” He suggested “to Mrs. Fisher that she draw up a will in which she gave, that is of her personal estate, that she would give equal shares to the Ulmer family and Miss' Swenk, in the event she preceded Miss Swenk in death. At that time
From this testimony it is clear that Mrs, Fisher and Miss Swenk agreed, in the presence ..of Dr.. Veri and Mrs. Ulmer, that the survivor would bequeath, her property in accordance with the. wills made to effectuate their agreement. .These mutual promises, made by
Decree affirmed; costs to be paid by appellants.