No. 515 January Term, 1977, On Appeal from Decree of Court of Common Pleas, Philadelphia, Orphans' Court Division, entered May 24, 1977 at No. 3356-1974.
Jacob S. Richman, Philadelphia, for appellants.
Samuel S. Blank, Upper Darby, Delaware County, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Pomeroy, J., did not participate in the decision of this case. Nix, J., concurs in the result. Larsen, J., dissents.
Herman Grossman died on November 9, 1973, survived by six children, Joseph Grossman, Max Grossman, Doris Roseman, Burton Grossman, Thelma Selet, and Rhoda Kesselman. Decedent's will, dated October 19, 1972, directed payment of all testator's debts, funeral expenses, and all inheritance taxes. The will provided that of the residue of decedent's estate, his son Joseph was to receive fifty percent, his daughter Doris was to receive fifteen percent, his grandchildren Margo and Duffy Grossman were each to receive twelve and a half percent, and his brother Max Grossman was to receive ten percent. Decedent's 1972 will was admitted to probate and, on October 22, 1974, letters testamentary were issued to the executor of the estate, his son, Joseph Grossman.
Decedent's disinherited children (Max, Rhoda, Thelma and Burton) objected to the first and final accounting of the estate. Rhoda claimed a one-half share of her father's net estate plus executor's commission.*fn1 In the alternative, Rhoda
claimed she was entitled to recover from the estate damages in quantum meruit for her expenditures and services with respect to certain of decedent's property. At the hearing before the auditing judge, Rhoda sought to establish her entitlement to a portion of the estate by proving that she and her father had entered into an oral agreement by which he agreed to execute a will leaving one-half of his estate to Rhoda and appointing her executrix, and that her father breached the agreement.*fn2 The auditing judge ruled that the testimony of both Rhoda and her husband, Stanley Kesselman, was incompetent under the Pennsylvania Dead Man's Statute, Act of May 23, 1887, P.L. 158, § 5(e), 28 P.S. § 322 (1958).*fn3 The court, therefore, refused to permit Rhoda or Stanley to testify in support of the claim, and rejected Rhoda's claim because the evidence of the agreement was not clear and convincing. By decree nisi, the auditing judge dismissed the claims of all the contestants and confirmed the account.*fn4
Contestants excepted to the decree nisi arguing inter alia that the Dead Man's Statute was improperly applied by the auditing judge to bar the testimony of claimant's husband, Stanley Kesselman. The orphans' court en banc dismissed appellants' exceptions and confirmed the decree nisi. On appeal to this Court appellants again contend that the orphans' court erred when it ruled that Stanley Kesselman's testimony was incompetent solely because he was the spouse
of a party whose interest was adverse to that of a decedent.*fn5 We agree that the orphans' court erred and hold that the testimony of Stanley Kesselman may not be excluded under the Dead Man's Statute solely on the basis of his marital status.*fn6
I. The Language of the Dead Man's Statute Does Not Require Exclusion of the Testimony of the Spouse of ...