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GELB ESTATE (03/21/67)

decided: March 21, 1967.


Appeal from decree of Orphans' Court of Philadelphia County, No. 485 of 1964, in re estate of Edward H. Gelb, deceased.


James Francis Lawler, with him Ostroff & Lawler, for appellants.

Edward M. David, with him Saul, Ewing, Remick & Saul, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Justice Cohen.

Author: Roberts

[ 425 Pa. Page 119]

This appeal involves the validity of an antenuptial agreement signed by the decedent, Edward H. Gelb, and his widow, Fannie Bazrod Gelb, on March 24, 1960, three days before their marriage. At the time of their marriage Mr. Gelb, then 67, and Mrs. Gelb, 64, both had adult children from prior marriages. By the terms of the agreement each party renounced his interest in the estate of the other, and Mrs. Gelb received $15,000 in cash.*fn1 The parties lived together harmoniously from the date of their marriage until the husband's death on June 6, 1963.

On February 28, 1964, Mrs. Gelb filed an election to take against her husband's will; the executors filed a petition to vacate this election. Following a hearing at which the validity of the antenuptial agreement was the sole issue, the auditing judge permitted the widow to take against the will because he found the evidence "convincingly establishes" that: "(1) the decedent materially misrepresented to Fannie Bazrod the value of his estate at the time he induced her to execute the antenuptial agreement; (2) Fannie Bazrod executed the antenuptial agreement in reliance upon the representations which Edward H. Gelb made to her." Exceptions were taken and the matter argued before the Orphans' Court of Philadelphia County en banc. That court unanimously affirmed the auditing judge's adjudication,*fn2 Gelb Estate, 38 Pa. D. & C. 2d 203 (Phila. O. C. 1966), and this appeal followed.

[ 425 Pa. Page 120]

Appellants attack the orphans' court's decision on two theories. Relying upon the parol evidence rule and the Dead Man's Statute,*fn3 they argue that the testimony of Harry B. Berk, Esq., scrivener of the antenuptial agreement, and Mrs. Gelb, should not have been received. They also maintain that in any event the antenuptial agreement is valid and binding because there is no showing of a lack of adequate provision for the widow. We shall consider the evidentiary questions raised first.

With respect to Mr. Berk, appellant's parol evidence objection is based upon the clause in the antenuptial agreement stating that the value of the husband's property had been fully disclosed to the intended wife. Because of the confidential relationship existing between parties to an antenuptial agreement, which requires from each the highest degree of good faith, such a declaration is only prima facie evidence, rebuttable by extrinsic evidence, Snyder Estate, 375 Pa. 185, 188, 100 A.2d 67, 68 (1953); McClellan Estate, 365 Pa. 401, 406, 75 A.2d 595, 597 (1950). Accordingly, under the parol evidence rule, Mr. Berk's testimony was properly admitted to substantiate claimant's allegations of material misrepresentation contained in her answer to the petition to strike the election. Myers v. Rubin, 399 Pa. 363, 366-67, 160 A.2d 559, 561 (1960); LaCourse v. Kiesel, 366 Pa. 385, 390-91, 77 A.2d 877, 880-81 (1951). Whether Mr. Berk's testimony supports the conclusion of the court below that there was clear and convincing evidence of misrepresentation, see Palone v. Moschetta, 387 Pa. 386, 392, 128 A.2d 37, 40 (1956), is not, in this context, relevant to the question of its admissibility.

[ 425 Pa. Page 121]

One of the conditions which must be met before a witness can be properly disqualified under the Dead Man's Statute is that the interest of the witness, not simply his testimony, be adverse to the decedent. Hendrickson Estate, 388 Pa. 39, 45, 130 A.2d 143, 146-47 (1957). Even if we were to accept exceptant's assumption that Mr. Berk was receiving a fee as "co-counsel", an assumption not supported by the record, such an interest would not render him incompetent but would merely affect his credibility. In order to be adverse the interest must be one from which the witness will either gain or lose as the direct legal operation and effect of the judgment. Commonwealth Trust Co. v. Szabo, 391 Pa. 272, 281-82, 138 A.2d 85, 89 (1957); Gaston Estate, 361 Pa. 105, 62 A.2d 904 (1949); Dillon's Estate, 269 Pa. 234, 111 Atl. 919 (1920). For example in Gaston Estate, supra, we held that a guardian was a competent witness even though his commissions would be increased, if his contention on behalf of his minor wards was successful.*fn4

When Mrs. Gelb was called, exceptants objected to her testifying under the Dead Man's Statute. Claimant agrees that she was initially incompetent to testify, Snyder Estate, 375 Pa. 185, 100 A.2d 67 (1953), but views her testimony as coming within the ...

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