No. 76 W.D. Appeal Docket, 1983, Appeal from the Order and Opinion entered June 24, 1983 in the Superior Court of Pennsylvan at No. 149 Pittsburgh, 1982, affirming the Order entered on February 2, 1982 at No. 211 of 1980 in the Allegheny County Court of Common Pleas, Orphans' Court Division, , Pa. Super. ,
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., and Flaherty and McDermott, JJ., join in this opinion. Nix, C.j., filed a concurring opinion in which Flaherty and McDermott, JJ., joined. Larsen, J., filed a dissenting opinion in which Hutchinson and Papadakos, JJ., joined.
In this appeal, we are called upon to determine whether a woman who claims a spouse's elective share against the will of a decedent may testify under any exception to the Dead Man's Act, Act of July 9, 1976, P.L. 586, No. 142, 42 Pa.C.S. § 5930, in order to establish her status as a common law spouse. The trial court held that under our decision in In re Estate of McClain, 481 Pa. 435, 392 A.2d 1371 (1978), the
Appellee could in fact testify under the devisavit vel non exception to the Dead Man's Act.*fn1 The Superior Court affirmed the trial court. We reverse on the basis that McClain is not applicable on the instant facts.
The pertinent facts are as follows. The decedent, Warren Stauffer, died on December 8, 1979, leaving a will devising his entire estate to his brother. The Appellee, Bebeann O'Halloran, at first filed a challenge to the will claiming that it was a forgery and/or that the decedent was incompetent at the time he made the will. Subsequent to that, Appellee filed an election to take against the will on the basis that she was the wife of the decedent by way of a common law marriage. A trial was held on July 2, 1980 before the Honorable William S. Rahauser of the Court of Common Pleas of Allegheny County at which time the sole issue tried was whether or not Bebeann O'Halloran was the common law wife of the decedent.*fn2 At trial, counsel for the estate objected to any testimony of Appellee as would relate to any conversation she had with the deceased prior to his death on the basis of the Dead Man's Act. The trial judge, basing his decision upon a reading of McClain, concluded that the Appellee was competent to testify.
While the general policy in this Commonwealth is to accept common law marriage, we have stated that the same is to be tolerated and not encouraged. Wagner's Estate, 398 Pa. 531, 159 A.2d 495 (1960). We have also said that
common law marriage is a fruitful source of perjury and fraud, Id., 398 Pa. at 533, 159 A.2d at 497. This being so,
'when the lips of a man are sealed by death, and he leaves no satisfactory evidence as to the existence of such contract, courts will be very slow to establish it in derogation of the undoubted rights of those who follow him.'
Accord, Osterling's Estate, 323 Pa. 23, 185 A. 790 (1936); McGrath's Estate, 319 Pa. 309, 179 A. 599 (1935). Finally, when an attempt is made to establish a marriage without the usual formalities, we are called upon to examine the purported marriage contract with great scrutiny. [Citations omitted.]
Estate of Gavula, 490 Pa. 535, 540-541, 417 A.2d 168, 171 (1980).
The purpose of the Dead Man's Act is "to prevent the injustice which might flow from permitting the surviving party to a transaction with a decedent to give testimony thereon favorable to himself and adverse to the decedent, which the latter's representative would be in no position to refute," Estate of Kofsky, 487 Pa. 473, 476, 409 A.2d 1358, 1359 (1979), citing Weaver v. Welsh, 325 Pa. 571, 191 A. 3 (1937). It is in the light of these two ...