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MOWRY v. MCWHERTER (06/26/50)

June 26, 1950

MOWRY, EXR. ET AL., APPELLANTS,
v.
MCWHERTER



Appeal, No. 49, March T., 1950, from decree of Court of Common Pleas Of Westmoreland County, in Equity, No. 2376, in case of Paul F. Mowry, Exr., Estate of V. R. Mowry, Deceased et al. v. M. C. McWherter. Decree reversed.

COUNSEL

Charles F. C. Arensberg, with him Robert H. Rial, Thomas L. Wentling and Patterson, Crawford, Arensberg & Dunn, for appellants.

Vincent R. Smith, with him James L. McWhereter and Louis E. Sensenich, for appellee.

Before Drew, C.j., Stern, Stearne, Jones and Bell, JJ.

Author: Stearne

[ 365 Pa. Page 233]

OPINION BY MR. JUSTICE ALLEN M. STEARNE

This is an appeal from a decree in equity sustaining preliminary objections, in the nature of a demurrer, to

[ 365 Pa. Page 234]

    the bill of complaint. The relief sought is the construction and interpretation of a written agreement, the determination of the rights and obligations of the parties thereunder and the payment of the consideration to the proper individuals in the correct amounts.

The document being construed is characterized by the chancellor as "... a home made agreement between two parties, who were virtually parties, and it may not have been artistically drawn...."

In 1943, M. C. McWherter and V. R. Mowry each owned one-half of the outstanding capital stock of a corporation named George Mowry & Co., Inc., engaged in the lumber business. On April 21, 1943, the two co-owners executed the written agreement now in question, the pertinent portions of which are as follows:

"1. That as long as each of said parties are alive they shall each hold the same number of shares of said capital stock, said amount to be kept equal by the issue to the one or the other of treasury stock or otherwise.

"2. Upon the demise of either of said parties the survivor of them shall immediately become the owner of all of the outstanding stock of said company with the option to pay for the same by either of the following methods:

"(a) By guaranteeing in writing to the widow of such deceased party or his heirs an annuity of at least $150.00 per month for a period of 15 years beginning one month from ...


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