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ESTATE ALICE SWENK (11/09/54)

November 9, 1954

IN RE ESTATE OF ALICE SWENK, DECEASED. APPEAL OF EDWARD J. PHELAN AND LEAH M. PHELAN. (SWENK ESTATE.)


COUNSEL

Charles W. Eaby, Charles W. Eaby, Jr., Lancaster, for appellant.

John I. Hartman, Jr., Windolph & Johnstone F. Lyman Windolph, Lancaster, for appellee.

Before Rhodes, P. J., and Hirt, Ross, Gunther, Wright, Woodside and Ervin. JJ.

Author: Ervin

[ 176 Pa. Super. Page 514]

ERVIN, Judge.

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, his 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 estate

[ 176 Pa. Super. Page 515]

    to Mrs. Fisher with the provision, however, that if Mrs. Fisher did not survive her, her estate was to go in equal shares to Ray H. Ulmer, Jeanette B. Ulmer and June D. Ulmer, their daughter, or to the survivor or survivors of them. Mrs. Fisher in her will devised her Charlotte Street residence to Ray H. Ulmer and Jeanette B. Ulmer, and bequeathed her residuary estate to Ray H. Ulmer, Jeanette B. Ulmer, June D. Ulmer and Miss Swenk in equal shares and should any of them predecease her to the survivor or survivors of them. On Octover 4, 1951 Miss Swenk executed another will wherein she bequeathed her entire estate to Edward J. Phelan and Leah Mae Phelan in equal shares. Mrs. Fisher died on Octover 20, 1951 and her will was probated on October 24, 1951. Her estate consisted of the Charlotte Street property, appraised for transfer inheritance tax purposes at $7,500, and personal property of approximately $16,840. Miss Swenk died on November 14, 1951. A. caveat against the probate of her will of October 4, 1951 was filed by Mrs. Ulmer but the caveat was dismissed and probate of this will as Miss Swenk's last will and testament was directed by the Orphans' Court of Lancaster County. At the audit of the first and final account of the executor of Miss Swenk's will of October 4, 1951 Jeanette B. Ulmer and June D. Ulmer claimed the balance for distribution as third party beneficiaries under an oral contract which they alleged was entered into by Miss Swenk and Mrs. Fisher shortly before November 28 1950. The court below found as a fact that Mrs. Fisher and the decedent had entered into an oral contract for the execution of mutual or reciprocal wills; that the wills of November 28, 1950 had been executed by the parties in performance of the terms of the agreement; and that the execution by Miss Swenk of another will on October 4, 1951 was in

[ 176 Pa. Super. Page 516]

    violation of the terms of the agreement. On the basis of these findings the court below entered the decree of distribution which is presently challenged by the appellants.

The question involved in this case in 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 In re 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 Estate, 136 Pa. 628, 20 A. 567, 10 L.R.A. 93; Smith v. Tuit, 127 Pa. 341, 17 A. 995; Wright's Estate, 155 Pa. 64, 25 A. 877; Shroyer v. Smith, 204 Pa. 310, 54 A. 24; In re Lewallen's Estate, 27 Pa. Super. 320; Park v. Park, 39 Pa. Super. 212; Frazier et al. v. Patterson et al., 243 Ill. 80, 90 N.E. 216, 27 L.R.A.,N.S., 508, and notes. In Thompson on Wills, ยง 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 ...


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