Appeal, No. 60, March T., 1958, from decree of Orphans' Court of Indiana County, Dec. T., 1953, No. 68, in re estate of William Liggins, deceased. Decree reversed.
John M. Bennett, with him James W. Mack, and Weimer, Bennett & Jones, for appellant.
David C. Wolfe, with him J. Murray Buterbaugh, and Spence, Custer, Saylor, and Wolfe, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE BELL
Harry L. Oldham who resides at 1346 Solomon Street, Johnstown, Pa., is the son-in- law of the decedent, William Liggins. Oldham filed a petition against Constance Liggins (daughter and) devisee under William Liggins' last will and Constance Liggins, Administratrix c.t.a., for specific performance of an agreement between Liggins and Oldham and Margaret Oldham, his deceased wife, who was the daughter of Liggins, and praying for the conveyance to him of a one-half interest in premises 1346 Solomon Street, pursuant to an agreement made between Liggins and Mr. and Mrs. Oldham.
Mr. and Mrs. Oldham were the owners of premises 1346 Solomon Street. Mr. Liggins was living with them. He had no work and was despondent, and in order to give him an interest in life they orally agreed to convey to him a one-half interest in this property which was an apartment house, provided that they would all make reciprocal wills devising the real estate to the survivors. This agreement they faithfully carried out.
The agreement was proved by Mr. D. L. Zook, who is an attorney in Johnstown,*fn1 Pa.
Zook repeated over and over again that the deed for a one-half interest in the Solomon Street property and the reciprocal wills were prepared by him and were executed by the respective parties pursuant to the above mentioned oral agreement, namely, that Mr. and Mrs. Oldham would convey to Mr. Liggins a one-half interest in the Solomon Street property, in return for which each of them would execute reciprocal wills leaving their respective interests in the property to the survivors. The deed and the reciprocal wills were executed on May 4, 1951. In spite of a piercing and clever cross-examination Zook's testimony was clear, definite, precise, unshaken and very convincing. The deed and the reciprocal wills were witnessed by Zook and his secretary.
Liggins' will pertinently provided: "SECOND: - I give and devise any and all interests in real estate which I may own at the time of my death to Mrs. Margaret Liggins Oldham, my daughter, and to Harry L. Oldham, ...