Charles M. Thorp, III, Thorp, Reed & Armstrong, Pittsburgh, for appellants.
Zeno Fritz, Pittsburgh, for Elizabeth S. Cummings, Surviving Spouse.
John H. Auld, II, Pittsburgh, for Pittsburgh National Bank.
O'Brien, C. J., Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Larsen, J., concurred in the result.
This is an appeal of the residuary legatees under the will of John M. Cummings questioning the dismissal of their petition to vacate the surviving spouse's election to take against the will of decedent. The basic question to be answered is whether the appellee, Elizabeth Cummings, the widow, was barred from electing to take against the will under the terms of an antenuptial agreement which she and the decedent had entered. There is no disagreement that appellee and the decedent entered into the antenuptial agreement and that the agreement was a valid one and, therefore, binding upon them. The specific question is whether the decedent fulfilled a certain covenant of that agreement which required, inter alia, the decedent, under his last will and testament, to provide a trust fund in the amount of not less than $30,000.00 for the benefit of appellee whereby she would receive the income therefrom for the remainder of her life.
On November 16, 1964, the decedent, John M. Cummings, and Elizabeth Shields entered into an antenuptial agreement. Paragraphs five (5) and six (6) of that agreement provided as follows:
5. The party of the first part covenants and agrees that he will, by Last Will and Testament, provide a trust fund in the amount of not less than $30,000.00 with a provision that the income therefrom will be paid to the party of the second part for and during the term of her natural life and, likewise, will provide that she have possession and occupancy of a four-room cottage on leased premises at Harmarville, Pennsylvania for and during the term of her natural life, and will provide that said trust fund pay burial expenses of party of the second part.
. In return for the party of the first part providing for the party of the second part as set forth in the preceeding [sic] paragraph, the said party of the second part waives and relinquishes all claims to dower, homestead, widow's allowance, family allowance, or any other right in and to the property, real, or personal, which the said party of the first part now owns or may hereafter acquire and further covenants and agrees to sign and execute an election to take under the Will of the said party of the first part if required in the event the said party of the first part predeceases the party of the second part.
In his will, which was dated November 4, 1975, testator provided for his wife, appellee, in the following manner:
FOURTH: I give and bequeath unto my wife, ELIZABETH CUMMINGS, all my furniture contained in a four (4) room cottage on leased premises at Harmarville, Pennsylvania, to be hers, her heirs and assigns forever.
FIFTH: I give and bequeath all my stock in Duquesne Light Company to my wife, ELIZABETH CUMMINGS, for and during the term of her natural life and upon her death the stock to be divided in accordance with my residuary clause hereinafter contained. However, prior to distribution, this fund will provide sufficient cash to pay reasonable burial expenses of my wife, ELIZABETH CUMMINGS, if needed to bury her.
Decedent died on August 3, 1978, almost 14 years after the execution of the antenuptial agreement and approximately three years after the execution of his will. At the time of death, decedent possessed three hundred shares of Duquesne Light Company 8.64% preferred stock, having a date of death value of $29,440.00. The court below found that the life estate created in favor of appellee under decedent's will did not satisfy the obligation undertaken in the antenuptial agreement and, therefore, appellee ...