Appeal, No. 328, Jan. T., 1959, from decree of Orphans' Court of Lancaster County, No. 159 of 1958, in re estate of Nora E. Herr, deceased. Decree modified and affirmed.
Bruce P. Ryder, with him Alfred C. Alspach, for appellant.
Carl G. Herr, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and McBRIDE, JJ.
OPINION BY MR. JUSTICE BELL.
This case arose by a petition for a declaratory judgment. The question involved is narrow but difficult. Is the paper hereinafter quoted a contract or a will?
On August 11, 1933 Isaac R. Herr and his wife, Nora E. Herr, acquired title to premises No. 436 West Walnut Street as tenants by the entireties and resided therein until their respective deaths. The following typewritten instrument dated the 20th day of January, 1942, was duly executed by Isaac R. Herr and Nora E. Herr, his wife, and after the death of Nora E. Herr, who survived her husband, it was recorded in the Recorder of Deeds' office in Lancaster County, Pennsylvania on March 17, 1958. The instrument is as follows:
"WHEREAS, ISAAC R. HERR and NORA E. HERR, husband and wife, are owners of a certain lot or piece of land, situate in the City and County of Lancaster, Pennsylvania, with a 2 1/2 story brich [brick] dwelling house, No. 436 West Walnut Street, thereon erected;
"IT IS HEREBY MUTUALLY AGREED by and between the said Isaac R. Herr and Nora E. Herr, his wife, that upon the decease of the survivor, said above described real estate shall become the property of our nephew Walter A. Herr, his heirs and assigns, and we, each for ourselves, hereby devise and bequeath said real estate to the said Walter A. Herr, his heirs and assigns. Said devise to become operative upon the decease of the survivor.
"Witness our hands and seals this 20th day of January, A.D. 1942.