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MOORE ESTATE (07/02/70)

decided: July 2, 1970.

MOORE ESTATE


Appeal from decree of Court of Common Pleas, Orphans' Court Division, of Delaware County, No. 697 of 1968, in case of Estate of Edith G. Moore a/k/a Edith Hall Moore, deceased.

COUNSEL

Richard L. Raymond, with him Schroeder, Jenkins and Raymond, for appellant.

John Lamon, Jr., with him Joseph D. Calhoun, for appellee.

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

Author: Bell

[ 439 Pa. Page 580]

William and Edith Moore were married on January 22, 1966. This was the second marriage for both, and both had offspring by their former marriages; Mrs. Moore was a grandmother.

Edith Moore died testate on January 4, 1968, exactly thirty-one days after she executed her last will. She bequeathed her residuary estate in equal shares to her daughter, Patricia Graff, to her grandson, Eric Graff, and to her granddaughter, Valerie Graff. Patricia Graff was named executrix of her mother's estate. On September 27, 1968, the executrix filed an inventory which valued the assets of the estate at approximately $45,000. Included in the inventory was a Dreyfus Fund certificate having a value of approximately $4,600.

William Moore, the surviving spouse, filed (1) a timely election to take against his wife's will and also to take against any inter vivos transfers which he had a right to treat as testamentary, and (2) a timely petition claiming the family exemption. Patricia Graff, in her own right and as trustee for her minor children, filed (1) a petition to vacate William Moore's election to take against (a) decedent's will and (b) her inter vivos transfers, and (2) exceptions to William Moore's petition for the family exemption. Both the petition and the exceptions were based upon the allegation that William Moore, for good and valuable consideration, had agreed not to take any share of his wife's estate, and that her will recited this agreement.

[ 439 Pa. Page 581]

It has long been the law of this Commonwealth that "an oral ante-nuptial agreement should not be found, save upon clear and convincing proof."*fn1 Hunt's Appeal, 100 Pa. 590, 597; see, Krug's Estate, 196 Pa. 484, 46 Atl. 484; Lant's Appeal, 95 Pa. 279; cf. also, Slavinski Estate, 420 Pa. 504, 218 A.2d 125; Brozenic Estate, 416 Pa. 204, 204 A.2d 918; Bunn Estate, 413 Pa. 467, 198 A.2d 518; Fenstermaker Estate, 413 Pa. 645, 198 A.2d 857.

The lower Court was of the opinion that Patricia Graff did not present adequate evidence to sustain her burden of proof. We agree.

Mrs. Graff presented four witnesses to support her claims of an antenuptial agreement in and by which Moore released all his rights in his wife's estate. Two of the witnesses were disinterested; the other two, namely, Mrs. Graff and her husband, were manifestly interested in the issues and their outcome.

William Moore contended that Mr. and Mrs. Graff were incompetent to testify because of the "Dead Man's Statute," Act of May 23, 1887, P. L. 158, § 5(e), 28 P.S. § 322. "The burden to prove incompetency rests upon [William Moore], competency to testify being the rule and incompetency the exception: (Rosche v. McCoy, 397 Pa. 615, 619, 620, 156 A.2d 307 (1959) and authorities therein cited; Hendrickson Estate, 388 Pa. 39, 44, 130 A.2d 143 (1957)). The so-called 'Dead Man's Act', supra, provides, inter alia, an exception to the general rule of competency and ' disqualifies as a witness a "surviving" or "remaining" party or "other person " whose interest is adverse to one who is dead and proscribes any testimony by such ...


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