Appeal, No. 48, March T., 1950, from decree of Orphans' Court of Westmoreland County, Aug. T., 1948, No. 117, in Estate of Robert Price McClellan, Deceased. Decree affirmed.
Robert W. Smith, with him Louis E. Sensenich and Smith, Best & Horn, for appellants.
John G. Buchanan, with him Scott Fink, R. T. Jennings, Jr., John G. Buchanan, Jr., Smith, Buchanan & Ingersoll and Fink & Jennings, for appellee.
Before Drew, C.j., Stern, Stearne, Jones and Bell, JJ.
OPINION BY MR. JUSTICE BELL
The widow of the decedent duly filed her election to take against his will. Eight months later the executors filed a petition praying that the election to take against the will should be stricken from the records because the widow and the decedent had entered into an antenuptial agreement specifically fixing the amount or share of decedent's estate to which the widow should be entitled. The court dismissed the petition on the ground that the provision for the widow was unreasonable and grossly inadequate and that the decedent had not made a full and fair disclosure to his fiancee of his worth.
Dr. McClellan, the decedent, was married to the respondent on May 15, 1943, and they lived together for four years and five months until the decedent's death. At the time of the marriage the Doctor was 80 years old and the respondent 58. Each of them had been married before, the Doctor having several children and the respondent one child by a prior marriage.
Decedent by his will gave his wife $5000. pursuant to said ante-nuptial agreement; as well as household furniture and effects, and the right to live in their apartment without payment of any rent or taxes (in connection with said premises) as long as his wife remained his widow. The $5000. legacy and the furniture and effects were bequeathed free of tax. Decedent gave respondent at some undisclosed time prior to his death, securities worth approximately $15,000.
Respondent and her first husband rented the Doctor's home for $40. a month and the Doctor paid respondent $50. a month for an apartment in said home and for board and lodging. This arrangement continued for several years. A year after the death of respondent's first husband she and the Doctor entered into the aforesaid ante-nuptial agreement which provided in the first paragraph thereof that his "Executors... shall pay
to her the sum of $5,000.00 in full satisfaction, payment, and discharge of any and all claims that the party of the second part may have under any and all laws as his widow or heir at law...." The agreement also provided as follows: "Fifth: This agreement is entered into by each party with full knowledge... of the extent and probable value of all the property, or estate, of the other,...." Attached to the ante-nuptial agreement and offered in evidence by the decedent's executors was a paper which was found in the possession of the decedent and was signed by the respondent and duly witnessed: "... He has bought and holds in his own name the following real estate", naming four properties valued at $68,000. "and bank stocks worth $15,000., Jersey and other stocks $20,000., and bonds worth about $90,000., but that for fear something was under-estimated, or forgotten, we added $7,000". The parties agreed that the actual value of the Doctor's real estate at the time was $70,100., so that he made a substantially correct disclosure of his real estate. However, at the time of the ante-nuptial agreement, the bank stocks had an actual value of $86,152.50; Jersey and other stocks $147,379.98; bonds $249,778.23; cash in banks $36,376.55. In other words the Doctor had disclosed personal property of $132,000., whereas the actual value of his personal property was $519,727. (less liabilities of $10,500). The Doctor had also conveyed under a trust agreement a major portion of his estate to a trustee for the benefit of his descendants, viz, insurance policies which had a cash surrender value of $67,134. The respondent knew of this and it has not been taken into consideration by the parties or by the courts in deciding this case.
At the time of the Doctor's death, his assets, excluding insurance policies, totaled $675,500., made up of securities and cash of $580,000. and real estate of $95,500. ...