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ESTATE FRIEND H. MCFETRIDGE (04/28/77)

decided: April 28, 1977.

IN RE ESTATE OF FRIEND H. MCFETRIDGE, DECEASED. APPEAL OF PATIENCE C. O'CONNELL, EXECUTRIX


COUNSEL

Buss & Eckensberger, Richard C. Buss, Whitehall, for appellant.

Weaver, Weaver & Weaver, Thomas E. Weaver, Jr., Catasauqua, for appellee, Jeffrey K. McFetridge.

Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Former Chief Justice Jones did not participate in the consideration or decision of this case. Manderino, J., joins in this opinion and filed a concurring opinion.

Author: Roberts

[ 472 Pa. Page 548]

OPINION OF THE COURT

Decedent Friend H. McFetridge died testate on October 20, 1974. His will, dated August 14, 1974, was admitted to probate on November 4, 1974, and letters testamentary were issued to appellant, Patience C. O'Connell. Decedent's will provided in part that the residue of his estate be distributed: a three-twentieth share to appellant "in lieu of and for the services she will render as the executrix of my Estate," a one-twentieth share to Harry Hill, decedent's nephew, and an eight-tenths share to appellant in trust for appellee, decedent's son, Jeffrey K. McFetridge.

[ 472 Pa. Page 549]

On January 20, 1975, appellant filed an inventory of decedent's estate. Appellee then filed a petition for a supplementary inventory alleging that the proceeds of two savings accounts which were inventoried as assets of the estate should not have been included as estate assets. Appellee claims that the savings accounts were tentative or totten trusts which should have been transferred to him immediately upon decedent's death. Appellant contends that decedent orally revoked the totten trusts and that the savings accounts were therefore assets of the estate. After a hearing, the trial court, relying on the "Dead Man's Statute,"*fn1 ruled that appellant was incompetent to testify regarding decedent's alleged oral revocation of the totten trusts. The trial court held that appellant had not established that the totten trusts were revoked and ordered appellant to transfer the proceeds of the savings accounts to appellee.

In this appeal,*fn2 appellant asserts that she is competent to testify to the oral revocation of the totten trusts. We agree with the trial court's determination that appellant is incompetent to testify under the "Dead Man's Statute" and affirm the decree.

[ 472 Pa. Page 550]

The "Dead Man's Statute" provides:

"an exception to the general rule of competency and 'disqualifies as a witness a "surviving" or "remaining" party or "other person[s]" whose interest is adverse to one who is dead and proscribes any testimony by such party or person against the deceased as to matters which occurred before death if the deceased had any right in the subject matter which has passed to a party of record.'"

Matthew Estate, 431 Pa. 616, 625, 246 A.2d 412, 416 (1968), quoting Hendrickson Estate, 388 Pa. 39, 45, 130 A.2d 143, 146 (1957). The party challenging the competency of a witness has the burden of proving incompetency for the competency of a witness is the rule, and incompetency the exception. Matthews Estate, 431 Pa. at 624, 246 A.2d at 416; Rosche v. McCoy, 397 Pa. 615, 620, 156 A.2d 307, 309 (1959); G. Henry, Pennsylvania ...


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