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MANLEY v. MANLEY (02/02/76)

decided: February 2, 1976.

MANLEY
v.
MANLEY, APPELLANT



Appeal from decree of Court of Common Pleas of Delaware County, No. 4536 of 1974, in case of Mary Manley v. Alice T. Manley.

COUNSEL

Richard H. Anderson, for appellant.

Timothy F. Sullivan, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 238 Pa. Super. Page 299]

Appellant contends that the court below erred in two respects: (1) by permitting testimony as to the significance of a promissory note in violation of the parol evidence rule; and, (2) by finding sufficient evidence to support appellee's claim to be a holder of a life estate under a destroyed, unrecorded deed.

The unusual circumstances leading to the present dispute are clouded by the lack of specificity in appellee's

[ 238 Pa. Super. Page 300]

    testimony as to the chronology of events and by the familial and legal relationships of the parties. Appellant, Alice T. Manley, is the former daughter-in-law of the appellee, Mary Manley. Alice was divorced from Harry Manley, Jr., who is now deceased.

During 1961, appellee and her husband sold their home in Drexel Hill and moved in with their son William. They gave $5,500 to Harry, Jr., and appellant to aid in financing the construction of an apartment building at 215 Felton Avenue, Collingdale. The $5,500 was a part of the proceeds of the sale of the Drexel Hill home. The parties orally agreed, at the time of this "investment," that appellee and her husband would be permitted to live in an apartment in the new building for the rest of their lives. In June of 1963, when the building was completed, they moved into apartment 2A. On July 1, 1963, Harry, Jr., and appellant executed a promissory note in favor of appellee in the amount of $5,500. On July 22, 1965, Harry, Jr., paid appellee $1,500; and the face of the note was accordingly reduced. In 1968, appellee's husband died. Sometime between 1968 and 1971, appellee wrote on a small piece of paper: "Mom is to have the use of apartment 2A, while she lives."*fn1 The paper was signed first by appellant and later by Harry, Jr. Appellee took this step because she feared that her daughter-in-law might try to force her to move to a smaller apartment. Thereafter, appellee destroyed the document at the direction

[ 238 Pa. Super. Page 301]

    of appellant during a heated telephone conversation. Thus, the document was not available for production at trial. In her pleadings, appellant denied that the deed existed, but did not testify at trial.

Sometime in 1972, Harry, Jr., and appellant separated; and Harry, Jr., came to live with appellee. On November 24, 1972, Harry, Jr., agreed, inter alia, to deed to appellant the 215 Felton Avenue property. Subsequently, a second property settlement was drawn up and executed, which was the same in most material respects except for the following reference to the 215 Felton Avenue premises: "21. Wife agrees that husband's mother may continue to reside and exclusively occupy a certain apartment, being apartment No. 2A, at premises 215 Felton Avenue, Collingdale, Pennsylvania, being occupied by husband's mother, for and during the term of her natural life providing wife retains an ownership interest in said premises during said period of time, in consideration for which, husband agrees to pay to wife or her designee, the sum of One Hundred Forty ($140.00) Dollars per month as full rental payment for the use and occupancy of said apartment by husband's mother." On November 3, 1972, Harry's attorney wrote appellant's attorney suggesting a further modification of the property settlement which would have provided for a waiver of appellee's right to repayment from appellant on the $4,000 note balance in return for appellant's agreement to permit appellee to live rent free in Apartment 2A. Nothing further appears to have been done in regard to this proposed modification; and, on February 28, 1973, Harry, Jr., executed a deed to appellant which was duly recorded. No mention was made in the deed of appellee's life estate.

On May 17, 1973, appellant's attorney wrote to appellee threatening her with eviction because Harry, Jr., had not paid the rent. On ...


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