Appeals from decree of Orphans' Court of Luzerne County, No. 67 of 1965, in re estate of Frank Beeruk, deceased.
John M. Dudrick, for Wladyslaw Biruk.
John J. McCarty, with him Henry C. McGrath, Leon E. Sperling, and Richter, Lord, Cavanaugh, McCarty & Raynes, for Mary Beeruk.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Cohen dissents. Dissenting Opinion by Mr. Justice O'Brien.
We are faced with cross appeals from a decree dividing the residue of Frank Beeruk's estate between his widow and his nephew, Wladyslaw Beeruk. Frank Beeruk's first wife died in 1959; at approximately the time of her death, Frank consulted with an attorney concerning the emigration from Poland of his only living relative, his nephew Wladyslaw. After an extensive exchange of correspondence, Wladyslaw and his family (a wife and two children) arrived in the United States in January of 1963. Several days after Wladyslaw's arrival, decedent and his nephew visited decedent's attorney at which time a will was prepared pursuant to decedent's directions. This will, properly executed, left the residue (after three pecuniary bequests totaling $600) of Frank's estate to Wladyslaw and his
wife, Jadwiga, or the survivor of them. The will was prepared by decedent's attorney, T. G. Wadzinski, and was executed by decedent. Mr. Wadzinski testified that while the will was being typed the decedent said to him: "I promised Wadek [the nephew] if he came over I would give him my estate and I am doing it now." (Record at 73a-74a.)
Decedent then remarried and in April of 1964 executed a new will, leaving the same pecuniary bequests but giving the residue to his new wife. Upon his death, the 1964 will was probated; Wladyslaw filed a claim for the entire residue contending that decedent had contracted to leave the residue to him. We are convinced that the court below properly applied the principles contained in our most recent case concerning contracts to make wills, Fahringer v. Strine Estate, 420 Pa. 48, 216 A.2d 82 (1966), and that it correctly concluded that Wladyslaw had demonstrated that decedent had contracted to leave the residue of his estate to his nephew.
Of the issues considered by the court below,*fn1 only
two are of sufficient difficulty to warrant discussion. The widow first contends that the oral contract proven by the nephew covered both real and personal property and was therefore violative of the statute of frauds. This issue, as framed by the parties, involves a question of whether the 1963 will is a sufficient memorandum to satisfy the statute. It is clear that the will does not refer to the oral contract. Although the majority rule in other jurisdictions appears to be that a will, to constitute a sufficient memorandum, must refer to the alleged contract,*fn2 the Pennsylvania cases on this point are not decisive. Shroyer v. Smith, 204 Pa. 310, 54 Atl. 24 (1903) states that parol is admissible to demonstrate the link between the will and the oral contract while Anderson Estate, 348 Pa. 294, 35 A.2d 301 (1944) specifically requires that the connection be an explicit reference in the will to the underlying contract. Our latest decision, Herr Estate, 400 Pa. 90, 96, 161 A.2d 32, 36 (1960), cites Shroyer to support the rule that the will must be "connected with and support" the contract. However, Herr does not answer the question ...