Appeal from decree of Court of Common Pleas, Orphans' Court Division, of Allegheny County, No. 4067 of 1971, in re estate of Leo A. Lenherr, deceased.
Joseph M. Ludwig, with him Ludwig & Wilson, for appellant.
Donetta W. Ambrose, Assistant Attorney General, with her Israel Packel, Attorney General, for appellees.
Jones, C. J., Eagen, O'Brien, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Nix. Mr. Justice Manderino concurs in the result. Mr. Justice Eagen and Mr. Justice Pomeroy dissent. Mr. Justice Roberts took no part in the consideration or decision of this case.
The sole issue involved in this appeal is whether or not the West Virginia marriage of Sarah T. Lenherr to Leo A. Lenherr, the decedent, will be recognized in this Commonwealth for purposes of the marital exemption
to the Transfer Inheritance Tax. See, Act of June 15, 1961, P. L. 373, Art. III, § 311, 72 P.S. § 2485-311. If their marriage is so recognized, property held in their joint names will pass from the decedent to Sarah Lenherr without the imposition of a Pennsylvania inheritance tax. The Commonwealth contends that the property should be taxed at the rate applicable to transfers to collateral heirs, see, Act of June 15, 1961, P. L. 373, Art. IV, § 404, 72 P.S. § 2485-404, and it therefore claims a tax of $6,960.21 or fifteen percent of jointly owned securities in the net amount of $46,401.40. Diane L. Majoras as executrix of the estate of Leo Lenherr appealed the denial of the marital exemption to the Orphans' Court Division of the Court of Common Pleas of Allegheny County. After a hearing, the exemption was denied and exceptions argued before the Orphans' Court en banc were dismissed. This appeal follows.
The pertinent facts are as follows. On October 23, 1930, the deceased, Leo A. Lenherr was divorced on the grounds of adultery from his then wife Anna Kelly Lenherr and Sarah Barney [Lenherr] was named as the co-respondent. On December 27, 1930, Sarah was divorced from her then husband William K. Barney on the grounds of adultery and Leo Lenherr was named as correspondent.
On March 12, 1932, after the two divorce decrees were entered and while William Barney and Anna Lenherr were living, Leo Lenherr and Sarah Gillespie Barney were married in West Virginia. They returned to Pennsylvania where they lived as husband and wife until the death of Leo Lenherr in August of 1971.
At the outset, it should be noted that all parties agree that Leo and Sarah's marriage was valid under the applicable laws of West Virginia. This dispute arises because of the Act of June 17, 1971, P. L. 174, § 1, amending, Act of March 13, 1815, P. L. 150, § 9, 48 P.S. § 169 (Supp. 1973-74), which provides: "The husband
or wife, who shall have been guilty of the crime of adultery, shall not marry the person with whom the said crime was committed, during the life of the former wife or husband. . . ." See also, Act of August 22, 1953, P. L. 1344, § 5, 48 P.S. § 1-5(h): "No license to marry shall be issued by any clerk of the orphans' court: . . . . To a person divorced by his or her former spouse on the grounds of adultery, for the marriage of such ...