Appeal, No. 21, March T., 1961, from decree of Orphans' Court of Somerset County, No. 125 of 1957, in re estate of Ray F. Montague, deceased. Decree affirmed.
Paul E.C. Fike, with him Joseph N. Cascio, and Fike and Cascio, for appellant.
Archibald M. Matthews, with him Chad L. John, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE EAGEN.
Decedent's widow questioned the adequacy of the executor's inventory and appraisement of the estate; her exceptions thereto were sustained by the court below. The legal correctness of this order is now before us on appeal.
The decedent died June 1, 1957, after a long illness. He left surviving, his widow whom he married in 1934, a daughter by a previous marriage and three grandchildren. In 1948, he unsuccessfully sought a decree in divorce through court action. Although he was a man of substantial means, it was necessary for his wife, who was an invalid, to secure an order for support in the year 1949. This order was not complied with from the year 1953.
Upon various dates over a period of approximately three months immediately before his death, he assigned and transferred all of his interest and title in personal property of substantial value to a sister, Goldie Beachy, and her husband, Walter. The history of these transfers is described in the findings of the lower court to which no exceptions were filed. Important transfers
were made on May 24, 1957, eight days before his death. No consideration was paid and since the transfers involved nearly all of his assets, the remaining estate enjoyed very nominal value.
On March 27, 1957, the decedent executed and published his last will and testament, wherein he gave all of his estate to his brother-in-law in trust, with specific detailed instructions as to how the trust was to be administered for the benefit of his daughter and grandchildren. His widow, whom the will ignored, elected to take against it. She also filed exceptions to the appraisement and inventory of the estate, which the lower court sustained. It concluded that the transfers of the personal property, attempted by the decedent during his lifetime, were fraudulent and made for the purpose of defeating his widow's statutory rights in his estate. The evidence strongly supports this conclusion.
There is no doubt but that under the law of Pennsylvania, as well as the common law, a married man during his lifetime may dispose of his personal estate as he sees fit. He is the absolute owner thereof and his wife and children have no vested interest therein. Their right to his property attaches only at his death: Benkart v. Commonwealth Trust Co., 269 Pa. 257, 112 Atl. 62 (1920); Windolph v. Girard Trust Co., 245 Pa. 349, 91 Atl. 634 (1914). However, it is equally well established a married man cannot, without complete divestiture, dispose of his personal estate during his lifetime without his wife's consent with an intent to commit an actual fraud upon her rights: compare DeNoble v. DeNoble, 331 Pa. 273, 200 Atl. 77 (1938). In determining the question of intent, actual fraud is the indispensable foundation and it is not established merely ...