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ESTATE EDITH DAVIS (11/26/75)

decided: November 26, 1975.

IN RE ESTATE OF EDITH DAVIS, DECEASED. APPEAL OF HORTENSE HIRSCH


COUNSEL

John A. Metz, Jr., Metz, Cook, Hanna & Kelly, Pittsburgh, for appellant.

G. Donald Gerlach, Robert W. Watson, Jr., Reed, Smith, Shaw & McClay, Pittsburgh, for appellee.

Jones, C. J., and Eagen, Roberts, Pomeroy, Nix and Manderino, JJ. O'Brien, J., took no part in the consideration or decision of this case.

Author: Roberts

[ 465 Pa. Page 95]

OPINION OF THE COURT

Appellant Hortense Hirsch filed a claim against the estate of decedent Edith Davis based upon an alleged oral contract between herself and decedent. When appellant sought to testify on her own behalf at trial, the executors relying on the Dead Man's Act,*fn1 challenged her competency

[ 465 Pa. Page 96]

    to testify. The Court of Common Pleas of Allegheny County, Orphans' Court Division, rejected appellant's contention that the Act had been waived. The court, ruling on the merits of the case, held that appellant failed to present clear and convincing evidence of the asserted contract and dismissed the claim. Exceptions were dismissed, and this appeal followed.*fn2 We affirm.

Appellant's written notice of claim and pretrial statement alleged that decedent orally contracted to bequeath to her for life the income from $1,000,000 if she acted as companion for decedent until decedent's death. Appellant's pretrial statement asserted that the contract would be established by witnesses other than herself. Appellant did not state when or where the asserted contract had been made.

In a section of their pretrial statement entitled "Request For A More Specific Pleading," the executors complained that appellant had not stated the year in which the alleged contract was made. Relying on Rule 1019(f) of the Pennsylvania Rules of Civil Procedure, which requires that averments of time and place be specifically pleaded, the executors requested that appellant provide them with a sworn specific statement of the claim. Appellant responded by submitting a verified document captioned "Claimant's Statement." We hold that the executors' request for a more specific pleading does not constitute a waiver of the Dead Man's Act.

The Act provides that one whose interest is adverse to the interest of a decedent is not a competent witness to any matter which occurred before decedent's death.*fn3 A

[ 465 Pa. Page 97]

    statutory exception allows a person whose testimony would be excluded to testify on his own behalf if called to testify against his ...


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