No. 48 January Term 1978, Appeal from the Decree of the Court of Common Pleas, Carbon County, Orphans' Court Division, at Estate File No. 75-368
John F. Gibbons, Lehighton, for appellant.
Daniel F. Zeigler, Jim Thorpe, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Roberts, J., concurs in the result.
John Gavula died testate on November 21, 1975. In his last will, dated May 15, 1963, the deceased directed his just debts, funeral expenses, and testamentary expenses to be paid and left the remainder of his estate to his two sisters.
On March 5, 1976, Anna Ardos, appellant, petitioned the Court of Common Pleas of Carbon County, Orphans' Court Division, for a "spouse's allowance"*fn1 and a "spouse's exemption."*fn2 Ardos claims that she is the wife of the deceased by virtue of a common law marriage which purportedly occurred on April 23, 1966.
On June 18, 1976, the trial court appointed a master to determine Ardos' rights as the purported spouse of the deceased. Testimony was taken at three hearings, and the testimony of Ardos was taken subject to a standing objection, by counsel for the estate, based on the Act of May 23, 1887, P.L. 158, § 5(e), 28 P.S. § 322 [hereinafter: Dead Man's Act].*fn3
On July 11, 1977, the master filed a report in which he concluded Ardos was incompetent to testify under the Dead
Man's Act. The master further concluded that Ardos failed to prove that she was the common law wife of the deceased by a preponderance of the evidence. Accordingly, the master recommended that Ardos' petitions be dismissed with prejudice.
Ardos duly filed exceptions to the master's report, and the trial court ordered the matter returned to the master for appropriate recommendations. In the exceptions, Ardos argued that there was evidence to support a common law marriage and that evidence offered by the estate, regarding the non-existence of the common-law marriage, rendered Ardos competent to ...