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RUTH E. DALEY v. DAVID E. HORNBAKER (03/02/84)

filed: March 2, 1984.

RUTH E. DALEY, JACOB E. HORNBAKER, MELVIN E. HORNBAKER, DOROTHY M. SENSENY AND CLARENCE ROY HORNBAKER, ADMINISTRATORS OF THE ESTATE OF MELVIN MOODY HORNBAKER, DECEASED AND ADMINISTRATORS OF THE ESTATE OF MARY JANE HORNBAKER, DECEASED, APPELLANTS,
v.
DAVID E. HORNBAKER, SR., AND DEBRA K. HORNBAKER, HIS WIFE



No. 104 Harrisburg, 1983, Appeal from the Judgment entered June 17, 1983, Court of Common Pleas, Franklin County, Civil No. Vol. 7, pg. 282.

COUNSEL

Gregory L. Kiersz, Waynesboro, for appellants.

Dennis Anson Zeger, Mercersburg, for appellees.

McEwen, Johnson and Popovich, JJ.

Author: Johnson

[ 325 Pa. Super. Page 174]

Appellants, administrators of the estates of Melvin Moody Hornbaker and Mary Jane Hornbaker, appeal from the judgment entered June 17, 1983. Said judgment was based on the order of March 4, 1983 dismissing their exceptions to the decree nisi of September 27, 1982.

The instant equity action was based on a transfer of 73 acres of real property from Mary Jane Hornbaker to her grandson and his wife, appellees. The property was owned by Mary Jane and Melvin Moody Hornbaker, husband and wife, as tenants by the entireties. The deed transferring

[ 325 Pa. Super. Page 175]

    the property, prepared by appellee David E. Hornbaker, was executed on February 20, 1981 during Mary Jane Hornbaker's hospitalization. It was stipulated pretrial that Mary Jane Hornbaker forged the signature of her husband Melvin on the deed. Melvin died the following day. Mary Jane died March 7, 1981.

Appellants filed their equity complaint August 11, 1981 seeking, inter alia, that the said deed be declared null and void and the property be conveyed back to the estate of Mary Jane Hornbaker. The trial court denied relief on September 27, 1982 and appellants' exceptions were subsequently denied as well.

Appellants raise three issues on appeal, whether the trial court erred (1) in disregarding admissions of fact and evidence concerning undue influence and a confidential relationship between appellees and the deceased grantor, (2) in failing to consider equitable principles of law and public policy concerning this conveyance of property held as tenants by the entireties, and (3) in failing to find that appellees waived the provisions of the Dead Man's Act by participating in pretrial discovery. Finding no error, we affirm.

We note initially that our scope of appellate review of a decree in equity is particularly limited and said decree will not be disturbed unless unsupported by the evidence or demonstrably capricious. Lynch v. Hook, 298 Pa. Super. 27, 444 A.2d 157 (1982).

We need only address appellants' second issue, as it is clear that appellants are estopped from asserting the invalidity of the conveyance in the instant case. Appellants argue that the trial court erred in failing to consider equitable principles of law and public policy making the conveyance by Mary Jane Hornbaker void.*fn1 Specifically, appellants allege that the trial ...


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