No. 176 March Term, 1977, Appeal from the Decree dated June 8, 177, of the Court of Common Pleas, Orphans' Court Division, of Westmoreland County at No. 65-73-1767. No. 203 March Term, 1977, Appeal from the Order of the Court of Common Pleas of Westmoreland County dated June 8, 1977, at Civil Action -- Law No. 2889 of 1975
Stephen M. Feldman, Philadelphia, for appellant.
R. Stuart Jenkins, Media, Robert G. Lovett, Robert W. Watson, Jr., Reed, Smith, Shaw & McClay, Pittsburgh, Robert P. Lightcap, Lightcap, McDonald & Moore, Latrobe, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix and Larsen, JJ. Manderino, J., did not participate in the consideration or decision of this case. Roberts, J., files a dissenting opinion in which Larsen, J., joins.
Edward L. Friedman married appellant Beatrice Kamile Friedman on December 7, 1973. It was the second marriage for each, and they entered into an antenuptial agreement on the day of their wedding in which each renounced any interest in the estate of the other. Eleven days later Edward died, leaving a will executed in 1967, under which Beatrice takes nothing. In the court below Beatrice attacked the validity of the antenuptial agreement and asserted a breach by Edward of an oral contract to bequeath practically all of his estate to her. The orphans' court upheld the antenuptial agreement and declined to find that a contract to make a will had been entered into. We affirm.
The procedural background is this. After Edward's 1967 will was admitted to probate, appellant filed a petition in the orphans' court division in March 1975 alleging that the antenuptial agreement was invalid and claiming her widow's share in his estate and the family exemption. The decedent's sisters-in-law by his prior marriage, who were the beneficiaries of his probated will, filed answers denying the allegations. In August 1975 Beatrice commenced an action in assumpsit against the executor of Edward's estate claiming nearly all of the estate by reason of an alleged oral contract to make a will. The executor took the position of a stakeholder and the sisters-in-law (as residuary legatees under the 1967 will) were permitted by stipulation of counsel to intervene as parties defendant. The suits were consolidated and tried without a jury as a proceeding in the orphans' court division, and the court thereafter dismissed the petition and entered a compulsory non-suit in favor of the defendants in the assumpsit action. Exceptions to the decree nisi were dismissed and a motion to take off the
non-suit was denied in a single decree, and these appeals followed.*fn1
The issues raised here are, in essence, (1) whether the antenuptial agreement is valid; (2) whether modification of decedent's 1967 will by operation of law, so as to entitle appellant to her intestate share of the estate, is barred by the terms of the agreement; (3) whether the lower court erred in entering the non-suit in the assumpsit action; and (4) whether the court erred in holding that claimant was incompetent to testify. Resolution of these issues requires a rather detailed recitation of the evidence, to which we now turn. The legal questions are discussed thereafter.
Edward Friedman's first wife died in 1965; there were no children of that marriage. Beatrice's first husband died in 1967; two children were born of that marriage. At the time of their marriage, Edward was 71 years of age and Beatrice 58. As stated above, Edward lived only eleven days thereafter. Both Edward and Beatrice possessed substantial estates at the time of their marriage; statements appended to their antenuptial agreement indicated that Edward was worth at least $532,000, while Beatrice had assets of at least $300,000.*fn2
The salient testimony in this case came from Gene E. McDonald, Esquire, who drafted the antenuptial agreement in issue and the proposed wills for Edward and Beatrice.
His testimony may be summarized as follows. On Friday evening, November 30, 1973, McDonald received a telephone call at his home in Latrobe from Edward Friedman, a neighbor whom he had represented from time to time over the years. Edward stated that he intended to remarry on Thursday, December 6, and asked whether, in view of his discussions with his prospective wife concerning property matters, McDonald could meet with them on Sunday, December 2. McDonald went to the Friedman home on that day and met with both Edward and Beatrice for about two hours. No one else was present.
McDonald described the nature of their conversation as follows:
". . . [W]e did get into the actual discussion of what a Pre-Marital Agreement was, what it meant, as I understood the laws and cases of Pennsylvania. I indicated the difficulty of drawing a Pre-Marital agreement which in my opinion would be valid stressing to Ed primarily . . . the absolute necessity of making a complete and detailed disclosure of all the assets that he owned. This took some time in order to be sure in my mind that Ed understood that it had to be in complete detail . . . . In these discussions I learned that he and [Beatrice] prior to my visit apparently had been discussing their desires as to property, subsequent to the marriage and that Ed had some knowledge of the assets which [Beatrice] had. I then explained to Ed and [Beatrice] what would happen to her interest . . . in [certain] real estate in the event of marriage and in the event she should die prior to Ed having died. In these discussions then [Beatrice] further indicated other assets which at least led me to believe that these assets would be substantial . . . After what I would call a give and take conversation among the three of us, as to the ramifications of the marriage, what effect it would have on each of the other's property, it was Ed's desire that they have a Pre-Marital Agreement. He wanted no interest in Mrs. Friedman's property and he indicated that he wanted his property, if the marriage
were existing at the time of his death to go substantially to [Beatrice].
". . . [A]nd then I said to Ed it seems to me that what we are now talking about is an estate plan because, and I explained then in some brief detail some of the possible tax consequences that could occur in the event that Mr. Friedman did, in fact, make a will leaving everything substantially to [Beatrice] without any trust provisions . . . I recommended then that he make a Will providing . . . the normal form of a marital deduction trust . . . Both he and [Beatrice] seemed to understand -- not seemed, but understood what I was saying . . . .
"Q. . . . [W]as there any discussion at that meeting with regard to what would happen to the property . . . in the event their marriage was dissolved or terminated by divorce?
"A. . . . This discussion, this was really Mr. Friedman's real concern, not concern that the marriage was going to be dissolved, but as he would say, God forbid, but if this dear woman and I were not able to get along I want to have control of my personal property; and [Beatrice] said well in effect -- words to the effect, we are in agreement of [ sic ] that, that if the marriage is dissolved we want control over our own property, but if the marriage is subsisting at the time of my death, Ed Friedman says, then I want [Beatrice] to have the property as I have described it in this testimony."
Beatrice also expressed a desire to make a will under which her estate would be divided between her two children. Edward would serve as executor but would receive nothing under the will. Beatrice also gave McDonald the names of two attorneys in Illinois who could aid in describing her assets; one was a relative of hers who prepared her income
tax returns. McDonald then explained that because of his schedule (which, as it happened, included an unrelated business trip to Chicago in two days) it would be impossible for him to draft the agreement and the wills by Thursday, and consequently the couple agreed to postpone their wedding one day.
The draft will which attorney McDonald prepared for Edward, as he described it, included three legacies of $5,000 each for two nephews and a niece. Approximately fifty percent of the estate was then placed in a so-called marital deduction trust for federal tax purposes, from which appellant would receive the income for life, with a right to take down principal as desired. Upon her death the balance of principal would go to such persons as she might appoint under a general testamentary power of appointment. The residue of the estate was also to go in trust to pay income to appellant for her life, with the remainder to her children outright.*fn3
After doing some legal research on the case on Monday, December 3, McDonald went to Chicago on Tuesday, December 4, and received some information from Beatrice's attorney there; he also called Edward and asked that additional information concerning Beatrice's assets, along with Edward's list of his own assets, be delivered to McDonald's office. The next day, McDonald dictated at his office the antenuptial agreement and the drafts of wills for Edward and Beatrice. After another out-of-town business trip on Thursday, McDonald returned to Latrobe that night and reviewed the typed documents. The lists of assets had been delivered in the meantime and were also reviewed by McDonald on Thursday night.
All was apparently in order when Edward and Beatrice arrived at McDonald's office on Friday morning to review and sign the agreement and wills. The meeting lasted about a half an hour and was described by McDonald as follows:
"The documents, the Pre-Martial Agreement and the Wills, each of the Wills had been laid on my desk to the right side of it, and I gave to Ed Friedman who sat opposite the desk, a copy of the Pre-Marital Agreement. Mrs. Friedman was seated to my right. I had a curved desk so that as she sat at that end of the desk, the copy which was left on the desk was one that she could review.
"Q And can you describe what, if anything, you did by way of telling them what was in the Agreement?
"A Mr. Friedman had a copy of the Agreement in his hands, Mrs. Friedman was sitting to my right a copy available for her to review and follow. I went down the Agreement through the Preamble and then paragraph by paragraph and said this is what this paragraph says and means, rather than reading it verbatim."
When the review of the antenuptial agreement was completed, but before any document was signed, McDonald turned to the wills, first reviewing Beatrice's will. Following this, he summarized Edward's will, and at this point Edward raised a question regarding the three $5,000 legacies to his two nephews and his niece. "He expressed an opinion that he really didn't owe them anything" and stated that "he might want to leave those legacies" to his sisters-in-law (the residuary legatees under the 1967 will). This, said McDonald, "was not a firm statement. [The] [i]ndication was he wanted to give it some consideration." Because it would be impossible to redraft the will for signing before Edward and Beatrice were to leave for their wedding later that morning, McDonald (after ascertaining that the couple would remain in Latrobe after the wedding) suggested that the antenuptial agreement only be signed, and that the drafts of the wills and copies of the agreement be delivered to the Friedman home on Saturday. In this way "after review Mr. Friedman could then call me and we would either sign the will as prepared or if there were any changes to be made we could make them." This suggestion was
agreed to by the couple. Duplicate copies of the antenuptial agreement were then signed and witnessed.
On Saturday night, December 8, McDonald delivered the agreement and the wills to Edward at home. There was no conversation concerning the substance of any of the documents. McDonald's next contact with the Friedmans was on Wednesday, December 12, when Edward telephoned "to decide upon a time when we could meet and discuss the Wills and any changes Ed might want to make." A meeting was arranged and held on Friday, December 14, one week after the wedding, at the Friedman home. At this meeting, which lasted about an hour, Edward, Beatrice, and McDonald were, as before, the only persons present. The central topic was Edward's will, and he directed two changes therein. First, the specific bequests were to go to his sisters-in-law. Second, the will was to provide that if Beatrice predeceased him, Edward's estate was to be divided equally between his sisters-in-law and Beatrice's children. No other changes were to be made, and Edward "was just as specific as he had been before, that if [Beatrice] were in fact living at the time of his death he wanted her to have his estate and in the same way that we had set it up as a result of the December 2nd meeting. . . ."
McDonald dictated these changes on Friday afternoon and the revised draft was typed on Monday, December 17. Edward Friedman never saw this new document, however, because he died on Tuesday, December 18. He had signed neither of the two wills prepared for him by McDonald during the preceding two weeks. The will of decedent which was admitted to probate was, as noted above, one which he had made in 1967.
We shall consider first the antenuptial agreement, and particularly appellant's attack on its validity. The portions of the agreement relevant to this phase of the case are as follows:
"WHEREAS, Edward and Beatrice intend to be married; and,
"WHEREAS, Edward is the owner of interest in real estate and the owner of personal property, each of substantial value, and which has been fully disclosed to Beatrice and is listed and contained in the schedule attached hereto, made a part hereof and marked Exhibit "A"; and,
"WHEREAS, Beatrice is the owner of interest in real estate and the owner of personal property, each of substantial value, and which has been fully disclosed to Edward and is listed and contained in the schedule attached ...