Appeal, No. 144, March T., 1957, from decree of Court of Common Pleas of Allegheny County, Jan. T., 1954, No. 1771, in case of Louis Sendick, Jr., executor of the estate of Susie Sendick, deceased, v. Agnes Matvey. Decree reversed.
Joseph I. Lewis and Louis D. Cooper, with them Cooper, Hunter & Lewis, for appellant.
Patrick J. Corr, for appellee.
Before Jones, C.j., Bell, Chidsey, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
Appellant, the youngest daughter of Susie Sendick, deceased, appeals from a decree in equity entered by a divided court en banc, affirming a chancellor's findings and ordering appellant to reconvey certain real estate located in Pittsburgh to the decedent's estate. Decedent instituted this equity action on November 16, 1953; upon her death, on April 4, 1954, her son and executor, Louis Sendick, Jr., was substituted as plaintiff.
The complaint in equity alleges, in substance, that the appellant fraudulently induced the decedent to execute a deed to the property in question to the appellant when the decedent's intention was only to make a will. The eighth paragraph of the complaint states: "At the time the alleged Deed was signed, the Plaintiff was in her sixty-ninth (69) year, weak in body and confined to her bed, and weak in mind, easily influenced by the Plaintiff [sic] who stood in a confidential relationship to her, and not possessed of such mental capacity to comprehend the true meaning of said instrument or to understand the effect of her act, and was told the instrument was only a Will which she could revoke any time. The plaintiff by reason of her illiteracy could not read the instrument that was signed by her; and since the same was not read to her in her native tongue, she trusted representations made to her
that it was a Will and signed the same." It was further alleged that the appellant promised to move into the decedent's home, pay the taxes, maintain the property and care for the decedent and that the appellant had failed to do any of these things. In substance, the prayer of the complaint was that the appellant be compelled to reconvey the property allegedly obtained by her fraudulent acts and undue influence.
Trial was held before the chancellor on October 4 and 5, 1954. The appellee offered eight witnesses, five of whom were ruled incompetent to testify under the Act of May 23, 1887, P.L. 158, § 5(e), 28 PS § 322. No exceptions having been taken to this ruling, the question of their competency is not before this Court. The three witnesses who were permitted to testify for the appellee were Mrs. Rose Parks, decedent's eldest daughter, Mrs. Parks' husband and the doctor who cared for the decedent during the period in question. The chancellor properly ruled that because Mrs. Parks did not stand to benefit under decedent's will she was a disinterested witness and consequently competent to testify under the Act of 1887, supra. Appellant called only two witnesses, Michael W. Huron, a member of the Allegheny County Bar and Mrs. Esther Huron, his wife and secretary, who was a notary public.
On July 11, 1955 the chancellor filed his adjudication, findings of fact, discussion, conclusions of law and decree nisi.
The chancellor made the following findings of fact, inter alia: that the decedent had, on August 15, 1951, executed a deed to the property in question, reserving a life estate while conveying the remainder interest to the appellant; that the appellant, on August 29, 1951, had executed a written agreement which recited that in consideration ...