No. 149 Pittsburgh, 1982, Appeal from Order of the Court of Common Pleas, Civil Division, of Allegheny County at No. 211 of 1980.
Donald H. Melaney, Pittsburgh, for appellant.
Edward C. Milburn, Pittsburgh, for appellee.
Cavanaugh, Brosky and Montgomery, JJ.
[ 315 Pa. Super. Page 593]
Warren C. Stauffer died on December 8, 1979 leaving a will executed less than three months before his death. The sole beneficiary named in his will was his brother, Joseph T. Stauffer, to whom letters of administration c.t.a. were granted by the register of wills. The appellee herein, Bebeann O'Halloran, contested the will and filed a petition for citation sur appeal from the decree of the register. The appellee claimed that the will was not signed by the decedent and that the signature thereon was forged and that the decedent lacked testamentary capacity. Shortly after filing the petition for citation sur appeal the appellee filed an election to take against the decedent's will on the ground that she was the surviving widow. The matter came on for hearing before Judge Rahauser and the testimony was directed solely to the issue as to whether the appellee was the common law spouse of the decedent. No testimony was introduced concerning the issue of fraudulant signing of decedent's will or lack of testamentary capacity. The court below dismissed the appeal from probate and an appeal was not taken from that determination. The court decided that the appellee had sustained her burden of proving a common law marriage and confirmed her election to take against the will. The exceptions of the administrator c.t.a. were dismissed
[ 315 Pa. Super. Page 594]
and he has appealed from the order of the court below.*fn1
The first issue is whether the appellee, Bebeann O'Halloran, was competent to testify as to her status as the common law wife of the decedent, Warren Stauffer. Ms. O'Halloran was permitted to testify over the objections of counsel for the administrator c.t.a. that she and the decedent entered into a common law marriage on July 26, 1970, while driving to Geneva-on-the-Lake. The testimony by Ms. O'Halloran was as follows:
Q. Was there anything which transpired on that trip?
A. He asked me to be his wife, and I said I would.
Q. Do you recall his exact words?
A. Yes, he said, "Will you be my wife?"
Q. And your response was what?
Q. Did you two exchange gifts at ...