George I. Puhak, Hazleton, for appellant.
Richard I. Bernstein, Falvello, Ustynoski, Giuliani & Bernstein, Hazleton, for appellees, Christ Church, United Church of Christ, Conyngham, Pennsylvania.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ.
The issue in this appeal is whether Henry C. Kester and Olive M. Kester, husband and wife, in executing a joint will,
also entered into a contract in the same instrument whereby each gave up the right to revoke his or her testamentary disposition in the event one of them predeceased the other.
On July 6, 1955, Henry C. Kester and Olive M. Kester executed the following joint will. The pertinent paragraphs to which appellant directs our attention have been underlined.
KNOW ALL MEN BY THESE PRESENTS, THAT
WE, HENRY CLAY KESTER and OLIVE MAY KESTER, husband and wife of 523 North Broad Street, West Hazleton, Luzerne County, Pennsylvania, being of sound mind, memory and understanding, do make, publish and declare the following as and for our last Will and Testament, hereby revoking and making void any and all former wills by us heretofore made.
Subject to the contingency hereinafter stated, I, the said HENRY CLAY KESTER, do hereby give, devise and bequeath all my estate, real, personal or mixed, of which I may die seized or possessed, to my wife, OLIVE MAY KESTER, her heirs and assigns, absolutely and forever, and I hereby appoint her sole executrix of this, my last Will and Testament.
Subject to the contingency hereinafter stated, I, the said OLIVE MAY KESTER, do hereby give, devise and bequeath all my estate, real, personal or mixed, of which I may die seized or possessed, to my husband, HENRY CLAY KESTER, his heirs and assigns, absolutely and forever, and I hereby appoint him sole executor of this, my last Will and Testament.
In the event, however, that we shall both die as the result of a common accident or disease, we shall be deemed to have both died at the same time (even though there be a reasonable interval of time between our respective deaths), and in this event, or in the event either one of us survives the other, it is our wish and mutual understanding Page 246} that we give, devise and bequeath our entire estate as follows :
FIRST: All our estate we give, devise and bequeath to our beloved son, CLARENCE WALTER KESTER, absolutely and forever.
SECOND: We hereby nominate, constitute and appoint our son, CLARENCE WALTER KESTER, sole executor of this our last Will and Testament.
THIRD: In the event our son should die with issue said issue shall inherit the share, that is all of our estate, of their father.
FOURTH: In the event our son should predecease us, we give our furniture, jewelry and personal belonging to Mrs. Marie A. Miller.
FIFTH: In the event our son should predecease us without issue, we give, bequeath and devise the remainder of our estate to:
The Hazleton State Hospital;
The Phoebe Home at Allentown, ...