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LEVINE ESTATE. (11/28/55)

November 28, 1955

LEVINE ESTATE.


Appeal, No. 132, March T., 1955, from decree of Orphans' Court of Allegheny County, 1950, No. 2423, in re Estate of Morris Levine, Dec'd. Decree reversed; reargument refused December 29, 1955.

COUNSEL

Morris M. Berger, for appellant.

Coleman Harrison, with him Allan I. Smith and Leon H. Fox, for appellee.

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

Author: Musmanno

[ 383 Pa. Page 355]

OPINION BY MR. JUSTICE MUSMANNO

On August 15, 1923, Morris Levine and Flora Winkler, each of whom had previously been married, became husband and wife, bringing to their common household children from their respective previous unions. The merger apparently was not completely harmonious for

[ 383 Pa. Page 356]

    in time differences arose between the spouses, quarrels followed, separation and divorce were threatened, and finally they decided to live in their mutual misery through the execution of an agreement which would clearly delineate their property rights in what they jointly and severally owned.

On December 24, 1949, the parties entered into an agreement asserting that they both were tenants in common of a property located at 6894 Hamilton Avenue (valued at $55,000 with an unpaid mortgage of $3800); that all income therefrom would be deposited in Morris Levine's personal checking account; and that Flora Levine was the owner of real property at 6428 Darlington Road (valued at $20,000, subject to a $5,000 mortgage) and personal property valued at $2500. It was stipulated that one-half of Morris Levine's checking account was to belong to Flora Levine and that in the event she predeceased her husband, one-half of the account was to go to her executor. On the other hand, if Flora Levine survived her husband, one-half of his checking account would be paid to her as a "full and complete accounting for all monies that may be due her as tenant in common of said real estate" [the Hamilton Avenue property]. The Agreement contained mutual waivers: "Each of the parties hereto, hereby waive and relinquish any and all rights which the survivor of them may have in the estate of the other by virtue of any law now in force or hereafter enacted."

Morris Levine died on April 30, 1950, leaving by a will dated November 30, 1947, the bulk of his estate to his three children of his former marriage. Mrs. Levine was named residuary legatee, but the residue was empty of substance. The widow elected to take against the will. On August 19, 1953, the administrator filed a petition to annual Mrs. Levine's election, pleading the post-nuptial agreement of December 24,

[ 383 Pa. Page 3571949]

. On January 21, 1954, Mrs. Levine filed an answer repudiating the agreement on the grounds that it was nudum pactum and had been signed by her under duress. The lower Court sustained the petition of the administrator c.t.a. to set aside the ...


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