Appeal from decree of Orphans' Court of Bucks County, No. 38479, in re estate of LeRoy A. Hillegass, deceased.
C. William Freed, Jr., for appellant.
H. Ober Hess, with him Harry L. Lees, Jr., Edward J. Hardiman, Matthew M. Strickler, and Ballard, Spahr, Andrews & Ingersoll, for appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Cohen concurs in the result.
This is an appeal by Esther V. Hillegass, decedent's widow, from the Decree of the Orphans' Court which granted a petition to strike off Esther's election to take against her husband's will.
LeRoy A. Hillegass died August 12, 1965, at the age of 76, leaving an estate inventoried at $265,876. He was survived by his widow Esther V. Hillegass, who was 60 years old and whom he had married five months before his death. David Hillegass, decedent's son by a former marriage, and Bradford LeRoy Hillegass, a grandson, and Alda M. Holtzman, a sister, also survived Hillegass.
LeRoy A. Hillegass and Esther Cassel, a widow, were married on April 2, 1965. Hillegass left a will dated March 19, 1964, and a codicil dated April 15, 1965. In his will, which was executed over a year before his marriage to Esther, he bequeathed a legacy to his son and to his sister conditioned upon their surviving him, then made a number of small charitable bequests, then created a trust of $40,000 for the benefit of his grandson, and then gave his residuary estate in trust to pay the net income to his son for life with the remainder to certain charities. Hillegass, on April 15, 1965, thirteen days after his marriage to Esther, executed a codicil giving Esther $15,000 and his residence in Bucks County, together with all of the tangible personal property contained therein, if she survived him. This property and the furniture were appraised at approximately $15,000, so that the codicil gave Esther approximately $30,000.
LeRoy A. Hillegass and Esther V. Cassel, his intended wife, entered into an Antenuptial Agreement, under seal, which raises the most important question in this case. It recites:
"Whereas, it is the purpose of this agreement to give each of the parties hereto the free and absolute control and disposal of his or her separate property or estate; and
"Whereas it is the intention of the intended wife to waive, relinquish and bar all her inchoate intestate and other rights or interests, either as wife or widow of the First Party, in and to any property now owned or hereafter acquired by the First Party, including her right of election to take against the Will of the First Party ;*fn1 and . . .
"Whereas, the First Party, being the intended husband, is seized in fee simple of certain real property located in Quakertown Borough, Bucks County, Pennsylvania, as well as certain personal property, the value of which has been ...