decided: October 1, 1979.
IN RE ESTATE OF WILSON E. KESTER, ALIAS DICTUS WILSON ELLIS KESTER, ALIAS DICTUS W. E. KESTER, DECEASED (TWO CASES). APPEALS OF MYRTLE KESTER, CLAIMANT
No. 251 March Term, 1977., No. 111 March Term, 1978., Appeals from the Decrees entered on October 5, 1977 and May 30, 1978 of the Court of Common Pleas of Westmoreland County, Orphans' Court Division, No. 65-76-1618, Election to Take Against Will.
Christ C. Walthour, Jr., Greensburg, for appellant.
Leonard R. Reeves, Latrobe, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ.
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OPINION OF THE COURT
Wilson and Myrtle Kester were married in February 1964. Approximately eight months later, on September 23, 1964, the Kesters entered into a written postnuptial agreement prepared by Wilson's attorney and executed in the attorney's presence. In the agreement each agreed to waive the right to elect against the other's will. Myrtle Kester also agreed that she would devise whatever assets she received from Wilson's estate to his son by an earlier marriage. Similarly, Wilson agreed that if he survived Myrtle, he would bequeath and devise whatever he received from her estate to her brothers.*fn1 At the same time the postnuptial
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agreement was signed, the Kesters executed wills. Each will reflected the terms of the agreement.
Wilson Kester died on October 18, 1976, leaving the will executed on September 23, 1964. In his will, admitted to probate on October 26, 1976, decedent left appellant, his widow, Myrtle, a life estate in his home and its furnishings. Appellee, decedent's son is the remainder beneficiary of the life estate. Decedent's will also directed that his son and widow share equally in the residuary estate.
Notwithstanding the terms of the 1964 postnuptial agreement, appellant filed notice of her election to take against decedent's will. See 20 Pa.C.S.A. § 2508. The estate petitioned for a rule to show cause why appellant's election should not be vacated. Appellant filed an answer averring that the agreement was invalid. A hearing was held before the Orphans' Court Division of the Court of Common Pleas of Westmoreland County. The court ruled that appellant was barred from testifying about the circumstances bearing on the postnuptial agreement by virtue of the Dead Man's Statute, Act of May 23, 1887, P.L. 158, § 5(e), 28 P.S. § 322,*fn2 that her testimony would be disregarded and that therefore, she had failed to meet her burden of proving that the
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postnuptial agreement was invalid. By decree nisi, dated October 5, 1977, the court granted appellee's motion to dismiss and set aside appellant's election to take against decedent's will. Appellant filed an appeal in this Court from the decree nisi. She also took timely exceptions to the nisi adjudication. Appellant filed a second appeal from the court's final decree dismissing the exceptions. By stipulation of the parties, both appeals have been consolidated for disposition by this Court.*fn3
Appellant's contention that the orphans' court erroneously refused to admit and consider her testimony must fail. Cases interpreting the Dead Man's Statute do not support the appellant's position. The court did not err in excluding appellant's testimony. See Baldwin Estate, 447 Pa. 599, 290 A.2d 421 (1972), affirming 54 Erie Co.L.J. 145 (1970); Gelb Estate, 425 Pa. 117, 121, 228 A.2d 367, 370 (1968); Snyder Estate, 375 Pa. 185, 189, 100 A.2d 67, 69 (1953).
Appellant also contends that regardless of whether her testimony was admissible, the motion to dismiss should not have been granted. The governing law is clear. Antenuptial and postnuptial agreements are presumed valid and the burden of proof is upon the party seeking to invalidate the agreement. Harris Estate, 431 Pa. 293, 297, 245 A.2d 647, 649 (1968). "The person seeking to nullify or avoid or circumvent the Agreement has the burden of proving the invalidity of the Agreement by clear and convincing evidence that the deceased spouse at the time of the Agreement made neither (a) a reasonable provision for the intended Spouse, nor (b) a full and fair disclosure of his (or her) worth." Hillegass Estate, 431 Pa. 144, 150, 244 A.2d 672, 675 (1968).*fn4 Reasonableness of the provision for the survivor
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must be evaluated as of the time of the execution of the agreement and in light of the attending circumstances. Kaufmann Estate, 404 Pa. 131, 136, 171 A.2d 48, 51 (1961). Considerations include: "(a) the financial worth of the intended husband; (b) the financial status of the intended wife; (c) the age of the parties; (d) the number of children each has; (e) the intelligence of the parties; (f) whether the survivor aided in the accumulation of the wealth of the deceased spouse; and (g) the standard of living which the survivor had before marriage and could reasonably expect to have during marriage." Hillegass, supra, 431 Pa. at 150, 244 A.2d at 676.
Appellant argues that the burden of proof should have been shifted to appellee because on the face of the agreement no provision of any nature was made for the surviving spouse. This contention must fail. Lock Estate, 431 Pa. 251, 255 n.1, 244 A.2d 677, 678 n.1 (1968), on which appellant relies, states that where the agreement itself makes no provision for the surviving spouse and the absence of full and fair disclosure is demonstrated by the claimant, the burden of proof will shift to the proponent of the agreement. See also, Vallish Estate, 431 Pa. 88, 94, 244 A.2d
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, 747 (1968). Here, however, appellant did not establish by clear and convincing evidence that her husband did not fully and fairly disclose the nature of his assets at the time of the agreement.
Finally, appellant urges this Court to rule that because the agreement on its face does not show that reasonable provision was made, or recite that decedent's assets were fully and fairly disclosed, the burden of proof must be placed upon appellees ab initio. Such a rule, however, is not necessary to protect the interests of the surviving spouse where, as here, at the time the agreement was entered into, decedent also executed a will leaving more than half of his estate to appellant. That will contemplated by the agreement and executed simultaneously with it, was the instrument probated as decedent's last will and testament. Indeed, decedent's testamentary gift to his wife of more than half of his estate is clearly a reasonable provision for his widow.
The appeal at No. 251 March Term, 1977, from the nisi adjudication is quashed. The appeal at No. 111 March Term, 1978, from the final decree is affirmed.
Each party pay own costs.