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WAY ESTATE. (11/15/54)

November 15, 1954


Appeal, No. 94, Jan. T., 1954, from decree of Orphans' Court of Centre County, Estate No. 15,389 in Estate of Alvin J. Way. Decree affirmed. Proceeding upon exceptions of legatee and devisee to report of auditor upon audit of first account of executor. Before WALKER, P.J. Order entered dismissing exceptions and confirming report of auditor. Exceptant appealed.


F. Lyman Windolph, with him William W. Litke, H. Clay Burkholder and Windolph & Johnstone, for appellant.

R. Paul Campbell, with him John R. Miller and Campbell & Miller, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Stearne

[ 379 Pa. Page 423]


The pivotal question is whether or not the Orphans' Court has jurisdiction to determine the validity of a written agreement executed by two sole beneficiaries under separate wills. In settlement and compromise the parties agreed and stipulated the proportions in which decedent's estate should be distributed. One of them subsequently repudiated the agreement alleging that she had been induced to execute the document through fraud and misrepresentation. The court below found against such allegation. The appellant contends that the Orphans' Court does not possess jurisdiction to decide this question since the litigation is between two living persons and that the issue must be relegated to the court of common pleas. This contention is contrary to specific enactment of the Legislature and numerous decisions of this and the Superior Court.

[ 379 Pa. Page 424]

Appellant fails to distinguish between agreements executed by all parties in interest in a decedent's estate relating to its DISTRIBUTION, and where the dispute is between a distributee and a living person involving no question of distribution of decedent's estate. Such latter controversy between living persons, being foreign to a distribution of the decedent's estate, must necessarily be relegated to the court of common pleas.

The facts are unduly condensed in the printed record. The un-deleted facts, however, as found by the auditor appear in the original record and are approved by the court. The condensed facts found by the auditor are: "Alvin J. Way died testate a resident of the Borough of State College, Centre County, Pennsylvania, November 18, 1948. The decedent left a last will and testament dated May 17, 1934, wherein he gave all of his estate unto Hazel Keller, provided she took good care of him during his lifetime, and which will was probated in the office of the Register of Wills of Centre County, Pennsylvania, January 31, 1950. Hazel Keller entered into a written article of agreement dated November 22, 1948, with Robert J. Way, son of the decedent, agreeing to a distribution wherein she should receive 35% of the estate; and, inter alia, that she would not contest the probate of a previous last will and testament of said decedent dated August 17, 1929. That the attorney selected to settle the differences arising between Hazel Keller and Robert Way was the attorney of Miss Keller's choice. Hazel Keller and Robert J. Way specifically sought the services of Mr. Dunaway, a member of the Centre County Bar, to reach an amicable adjustment of their respective rights in the estate of Alvin J. Way, deceased. The said parties did enter into the written agreement of November 22, 1948, providing for distribution as between the parties

[ 379 Pa. Page 425]

    which was partially carried out insofar as the items of household furniture were concerned. There was no fraud employed to induce Miss Keller to sign such agreement, and she distinctly understood her rights under such agreement. Hazel Keller, at the time of the execution of such agreement, was a person over the age of 21 years. Under the terms of such agreement Hazel Keller is to get 35% of the net estate. There was no mutual mistake of the parties either in fact or in law at the time of the execution of said agreement, the same having been entered into to compromise their differences and to avoid litigation between the parties over the respective wills of 1929 and 1934. The agreement above referred to is the result of the expressed purposes of both Miss Keller and Robert J. Way to compromise their differences but securing the best settlement to Miss Keller that could be gotten without going into court." These findings, including those in the original record, are abundantly supported by the testimony and should not be disturbed: Harbaugh's Estate, 320 Pa. 209, 182 A. 394; Istocin's Estate, 126 Pa. Superior Ct. 158, 190 A. 382.

That the auditor and court had ample support for their findings is most apparent. A reading of the record confirms their judgment as to credibility of the witnesses. The probated will of August 17, 1929 was professionally drawn. After provision for the payment of debts and funeral expenses and care of the cemetery lot, the residue of the estate is devised and bequeathed to decedent's son, the appellee herein. He was also appointed executor. There existed a most friendly relation between father and son.

The May 17, 1934 six line paper, subsequently probated as a will, was holographic. It reads:

[ 379 Pa. Page 426]

"State College, Pa.

May 17, 1934

"This is to certify that at the death of Alvin J. Way Hazel Keller is to have all his estate, providing she takes good care of the said Alvin J. Way during his life time.

(s) Alvin J. Way" While this document on its face, if duly proved, unquestionably constituted a will, there is ample testimony, if believed, which would invalidate the document as a will upon the grounds of testamentary incapacity, undue influence and fraud. Decedent was aged seventy-eight years at death; appellant was then thirty-nine; decedent had been appellant's "boss" at a college in the borough; she came to live with decedent and his wife as a roomer or boarder; after the wife's death appellant became decedent's "housekeeper"; she continued as such from 1930 to decedent's death in 1948. There is testimony that decedent suffered from a severe heart attack and also had cataracts surgically removed from both eyes. Appellant was obliged to read to decedent. She had and used a letter of attorney from decedent and transacted business for him. At sometime prior to decedent's death appellant consulted decedent's lawyer; she showed him the paper of 1934; the lawyer testified that he told her it looked like a good will, but that he thought she "would have a lot of trouble with it"; he testified that he said this because he had heard rumors of a meretricious relation existing between appellant and decedent and that the son would likely claim there had been undue influence. There was positive testimony, denied by appellant, of flagrant instances of actual moral misconduct; it was asserted that decedent and appellant had lived together as husband and wife. The decedent's lawyer, selected by both parties, was employed

[ 379 Pa. Page 427]

    to settle decedent's estate. He testified that the thirty-five per cent division of the estate to appellant was suggested by him because if appellant succeeded in establishing that she was a common law wife she would be entitled to one-third of decedent's estate. The lawyer further testified that appellant said "she did not want to go into court, but what she wanted to do was to get the best settlement she could without going into court." It is also understandable why decedent's son would be willing to compromise. Ordinarily any child will desire to avoid publicly besmirching a parent's reputation, especially in the small community where decedent had lived.

The covenants in the agreement of November 22, 1948 are:

"1. The [son, appellee] agrees to pay to the [appellant] as soon as practicable after the execution of this Agreement, an amount equal to thirty-five (35%) per cent of the net estate devised and bequeathed to him by [decedent] in the above mentioned will, said net estate to be determined as follows: (a) All personal property belonging to the estate, other than clothing, jewelry and household furnishings shall be included therein. (b) All real estate shall be included therein and shall be appraised for this purpose at the present fair market value of said real estate. (c) From the gross estate as determined in Paragraphs (a) and (b) above shall be deducted all debts owing by [decedent], the bequests to the Pine Hall Cemetery Association in the amount of Two Hundred ($200.00) Dollars and all inheritance taxes and attorney fees; however, there shall be no deduction for an executor's commission.

"2. The [son, appellee] further hereby bargains and sells, gives and releases to the [appellant] all the household furniture, ...

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