James J. Oliver, Philadelphia, for appellant.
Steven R. Sosnov, Norristown, for appellees, Mary M. Henry, Edward Henry, Rishell Henry and Stella Henry.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., filed a concurring opinion in which Manderino, J., joined. Pomeroy and Nix, JJ., concur in the result.
Traverse Henry died intestate on November 20, 1971. On this appeal*fn1 from a decree of the Orphans' Court of
Montgomery County we are presented with the following issue: was it proper for the court below to dispose of the issue of who was the decedent's lawful wife at the time of his death by granting appellees' motion for summary judgment.
The decedent was married to Ella Mae Vontress on June 28, 1930. On August 31, 1930, appellee, Edward Henry, was born to appellee, Mary Mathis and one "Francis Henry," whom the appellees claim is the deceased. On April 18, 1931, Traverse Henry married Mary Mathis. There is no evidence to indicate an intervening divorce between the deceased and his first wife. The record is clear, however, that Ella Mae Vontress did not die until September 23, 1968. On March 20, 1933 a son, Robert Henry, was born to the deceased and Mary Mathis. Robert Henry died on June 11, 1973, survived by two daughters, Stella Henry and Rishell Henry, also appellees in this action. The appellants, Florence Henry Brown, Virginia H. Greenwood and Charles Henry, are the sisters and brother of the deceased.
The issue as presented to the court below was whether the deceased's marriage to Mary Mathis was valid so as to afford the appellees rights under the intestate laws. The appellants opposed such a finding, contending that the deceased's first marriage rendered his subsequent marriage void.
The appellees, pursuant to Rule 1035(d) of the Pennsylvania Rules of Civil Procedure,*fn2 filed a motion for summary judgment. After examining documents presented by both parties and hearing argument on the motion, the court below granted the appellees' motion for
summary judgment. It is apparent from the opinion of the court below that there are material issues of fact which can be settled only at trial and that an erroneous legal standard was applied. Accordingly, we believe that the ...