Appeal from decree of Court of Common Pleas, Orphans' Court Division, of Montgomery County, No. 74119, in re estate of Jules Harrison, deceased.
Marvin Comisky, with him Samuel N. Rabinowitz, Morey S. Rosenbloom, M. Paul Smith, Blank, Rome, Klaus & Comisky, and Smith, Aker, Grossman, Hollinger & Jenkins, for appellant.
Howard J. Kaufman, with him Edward N. Polisher, and Cohen, Shapiro, Polisher, Shiekman and Cohen, for appellees.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts.
On June 5, 1968, decedent Jules Harrison executed a will which made certain specific bequests and directed his executors -- the Bryn Mawr Trust Company, his daughter, and his attorney -- to hold the residue of his estate in trust for his daughter. Approximately two years later, on June 13, 1971, Mr. Harrison and appellant, Betty Rudley Harrison were married. It was the second marriage for each.
Prior to this marriage on May 7, 1971, the couple executed an antenuptial agreement in which Jules Harrison fully and fairly disclosed the extent of his property. The parties, each represented by counsel, agreed that neither would have any claim against the estate of the other except to the extent either might voluntarily provide. These reciprocal waivers were "in consideration of their contemplated marriage and of the mutual covenants and releases herein contained . . . ."*fn1
The covenants relevant to the present controversy are found in paragraph 1, and require Mr. Harrison to
create by will a trust funded with at least $150,000. The entire net income from this trust was to be distributed to Mrs. Harrison quarterly, or in more frequent installments until her death or remarriage. Additionally, the trustees to be selected by Mr. Harrison would be authorized, in their discretion, to use whatever principal might be required to provide for Mrs. Harrison's medical and hospital care. If the net income in any year should be less than $12,000, the trustees were to be empowered to pay appellant, on her request, the difference between the income and $12,000. According to the agreement, at his widow's death or remarriage the corpus of the trust was to pass under Mr. Harrison's will.*fn2
Mr. Harrison lived for more than a year after the marriage but never executed the new will. Thus, at his death (September 6, 1972), decedent had failed to comply with the requirement of the antenuptial agreement. Following probate of the 1968 will, the widow petitioned for the family exemption.*fn3
The court refused to grant her petition because it concluded that despite decedent's failure to execute a new will, consideration for the agreement could now be supplied by acceptance of the executors' offer to set up a trust in the minimum dollar amounts recited in the agreement. The court reasoned that by failing to execute a will creating the trust, decedent had breached only a "technical requirement" of the antenuptial ...