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ESTATE FRANK M. CORACE (06/22/87)

decided: June 22, 1987.

IN RE ESTATE OF FRANK M. CORACE, DECEASED. APPEAL OF MARY K. GRAESER ALSO KNOWN AS MARY CORACE


Appeal from Judgment Entered September 9, 1986 in the Court of Common Pleas of Greene County, Orphans' Court No. 54 of 1985, Grimes, Jr.

COUNSEL

Ralph C. Christensen, Washington, for appellant.

Bruce E. Dice, Oakmont, for appellee.

Cirillo, President Judge, and Montemuro and Tamilia, JJ.

Author: Cirillo

[ 364 Pa. Super. Page 270]

This is an appeal from the grant of a petition to vacate the appellant's election against the decedent's will. We affirm.

[ 364 Pa. Super. Page 271]

Two issues are presented for our review: (1) whether the appellant was competent to testify*fn1 about the creation of her status as a surviving spouse; and (2) whether the appellant had established a common law marriage with the decedent before his death.

The trial court found that in September 1977, the decedent, Frank Corace, hired then 17 year-old appellant/claimant, Mary Graeser, to work in his business. The decedent had met the claimant approximately one year earlier when he was about 65 years of age. Later in 1977, decedent purchased a late model luxury car for claimant. In the spring of 1978, Eleanor Corace, whom decedent was married to at the time, committed suicide. In June 1979, claimant moved into the decedent's home.

In November 1980, decedent prepared his last will and testament designating his three grandchildren as sole beneficiaries. Two of these grandchildren were named as executors. Decedent and claimant continued to reside together, with the exception of one short interval, from June 1979 until decedent's death in March 1985. In September 1985, claimant filed a notice of election against the decedent's will based on her assertion that she was the decedent's widow. In response, the executors of the decedent's estate filed a petition to vacate the election. Claimant appeals the trial court's grant of the petition to vacate her election. The trial court found that claimant did not establish that she was the common law wife of the decedent.

I

We first discuss the claimant's competency to testify about her alleged common law marriage with the decedent. Section 2209 of Title 20 provides that "[a] person who is or claims to be the surviving spouse shall be a competent witness as to all matters pertinent to his rights ...


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