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ESTATE WILSON E. KESTER (10/01/79)

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.

COUNSEL

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.

Author: Roberts

[ 486 Pa. Page 351]

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

[ 486 Pa. Page 352]

    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

[ 486 Pa. Page 353]

    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 ...


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