Appeal from decree of Orphans' Court of Washington County, No. 264 of 1964, in re estate of Frank Tallarico, deceased.
Francis H. Patrono, with him Patrono and Edwards, for appellants.
Thomas J. Terputac, with him Edward V. Sciamanna, for appellee.
Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones.
Frank Tallarico and Clara Tallarico, residents of Washington County and husband and wife, had seven living children. Prior to November 5, 1956, Clara Tallarico (first wife) was the owner of certain realty located in Washington and Greene Counties, realty which had been purchased by moneys earned in a grocery business wherein both Frank Tallarico (decedent) and his first wife had been jointly engaged.
On November 5, 1956, by a warranty deed absolute on its face, the first wife conveyed to the decedent and herself as tenants by the entireties the realty in Washington and Greene Counties. This deed -- properly executed, acknowledged and delivered -- was duly recorded in both counties and it recited, inter alia, that the "deed [was] made without actual consideration for the purpose of creating a tenancy by the entireties in the grantees." Simultaneously with the execution of this deed and, at the first wife's insistence, the decedent and his first wife, on November 5, 1956, executed a lawyer-prepared written agreement which was duly acknowledged.
Under the provisions of that written agreement, the parties agreed: (1) the wife would convey to herself and decedent all the realty then titled in her own name to be held as a tenancy by the entireties; (2) each party agreed not to remarry in the event the other party died; (3) however, in the event that either decedent or his wife should remarry, it was agreed that "title to the said real estate [should] pass to and be vested in the children of [decedent] . . . and [his] Wife, their heirs and assigns, in fee simple, from and after the date of the said remarriage"; (4) the agreement could be enforced by any child or any issue of the decedent and his first wife by proceeding in the equity courts of Washington or Greene Counties for the revocation and setting aside of the deed to the extent it was inconsistent with the purposes of the written agreement. The uncontradicted testimony of the notary public was that, after this written agreement had been executed and acknowledged before her, she handed an executed copy of the agreement to both decedent and his wife. This agreement was not recorded until after the deaths of both decedent and his first wife.
Approximately three years subsequent to the execution of the deed and agreement, the first wife died. Approximately
one year thereafter, decedent met and married in Italy one Maria Mauro (second wife).*fn1 Decedent returned from Italy to the United States. Six months thereafter, the second wife came to the United States and resided with the decedent for approximately one and one-half years, at which time she returned to Italy for what she described as a visit necessary for her health. While the second wife was still in Italy, decedent died on August 21, 1963.
Decedent's will was duly probated and Serafino Tallarico, a son of decedent and the executor designated in the will, renounced his rights to letters testamentary. Letters of ...