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decided: October 15, 1987.


Appeal from the Order of Superior Court of Pennsylvania entered January 18, 1985, at No. 00132 Harrisburg 1983, reversing the Order of the Court of Common Pleas of Franklin County entered March 22, 1983, at No. 54 of 1982, Orphans' Court Division, Nix, C.j., and Larsen, Flaherty, McDermott,*fn1 Hutchinson, Zappala and Papadakos, JJ. Zappala, J., files a concurring opinion in which Papadakos, J., joins. Nix, C.j., files a dissenting opinion in which Flaherty, J., joins. Flaherty, J., files a dissenting opinion.

Author: Mcdermott

[ 516 Pa. Page 495]

The controversy in this appeal centers on whether an antenuptial agreement between the appellant, Rosalie Geyer, nee Werner, and her deceased husband, George W. Geyer, precludes her from exercising her statutory right to take against his will.*fn2

The appellant and the decedent met in October, 1976. Each had been twice married and widowed. A whirlwind romance ensued. Mr. Geyer soon expressed his interest in marriage, but the appellant was reluctant to marry a third time. Nevertheless she eventually consented to the union and the couple married on January 9, 1977.

In January of 1977, George Geyer was 68 years old. He had one adult son residing in California, five grandchildren, and six great grandchildren. By all accounts Mr. Geyer was an astute businessman who successfully operated and expanded the family enterprises. His net estate at the time of his marriage to Rosalie Werner was approximately 594,000 dollars. A substantial portion of this wealth was composed of the family business, but the decedent also had extensive real estate holdings.*fn3 He was established in the community and enjoyed a comfortable lifestyle.

Rosalie Werner, 56 at the time of her third marriage, had three adult children from her first marriage. Her second

[ 516 Pa. Page 496]

    husband died in March, 1976. After selling their marital home in Illinois she moved to Pennsylvania in order to be nearer her sister. Thus when she met George Geyer in October, 1976, she was relatively new to the locale, having resided there only since the previous August. Though she possessed no substantial business experience the appellant realized a modest income from her skills as a pianist.*fn4 Additionally, she received a Navy pension as a result of her second husband's military service.*fn5 Rosalie Werner's net estate was worth approximately 39,000 dollars in January of 1977.

From these respective positions the parties entered the antenuptial agreement here at issue. That agreement provided:


MADE this 30th day of December, in the year nineteen hundred and seventy- six (1976):

BETWEEN George W. Geyer, of the Borough of Chambersburg, Franklin County, Pennsylvania, FIRST PARTY,


ROSALIE WERNER, of Greene Township, Franklin County, Pennsylvania, SECOND PARTY.

WHEREAS, the said parties contemplate entering into marital relations with each other and each of the parties has been previously married;

WHEREAS, the first party is possessed of real and personal property, and the ownership and operation of Geyer Lumber & Millwork Co., Inc., the fuel oil business, and Geyer's Kraft Korner, Inc.;

WHEREAS, the first party has a son, George W. Geyer, III, five grandchildren, and six great grandchildren;

[ 516 Pa. Page 497]

WHEREAS, the second party's heirs are three children and ___ grandchildren; and

AND WHEREAS, the parties hereto, both having full knowledge and understanding of the other party's financial worth and financial position, agree with the other that their existing legal rights or the existing legal rights of their children and heirs shall not be affected by the proposed marriage as herein stated:

NOW, THEREFORE, it is mutually agreed as follows:

1. That the first party shall, during the continuance of his marriage with the second party, provide a home for the second party and shall use his income to provide reasonable support, maintenance and medical expenses for the second party, and upon the death of the first party if the second party survives him, then the first will either devise or convey to the second party the residence property, free and clear of all encumbrances, including the household furniture and furnishings less certain items which will be designated for his child or grandchildren.

2. That upon the death of the first party, the second party surviving him and living with him at the said time as his wife, shall be awarded, given or bequeathed a sum of Twenty Thousand ($20,000.00) Dollars to provide a substantial contribution to her way of living.

3. That the first party agrees with the second party and the second party agrees with the first party that in consideration of the two previous provisions by the first party, the second party will not make any claim to or file an election to any other portion of the first party's estate.

4. That the first party, in consideration of these agreements, understands and agrees that the second party may dispose of her estate in any way she wishes to do so, either by gift, devise or by will.

5. That it is expressly agreed that by virtue of the said marriage, neither party hereto shall have or acquire any right, title or claim in or to the real or personal estate of the other, except as herein provided, and the estate of each shall descend to and vest in his or her heirs-at-law,

[ 516 Pa. Page 498]

    legatees or devisees as may be prescribed by his or her last will and testament.

6. That it is expressly agreed that if either party shall mortgage, sell or convey his or her real estate, the other party hereto shall upon request join in any and every mortgage, deed, or other instrument that may be necessary for the eventual transfer of the same.

7. That this agreement is entered into by each party with full knowledge on the part of each of the extent and probable value of all of the property, or estate, of the other, and of all the rights, that but for this agreement, would be conferred by law upon each of them in the property, or estate, of the other, by virtue of the consummation of the said proposed marriage; and it is the express intention and desire of the parties hereto that their respective rights in and to each other's property, or estate, of whatsoever character the same may be, shall be determined and fixed by this agreement, and not otherwise.

8. That this agreement shall bind the parties hereto, their heirs, executors and assigns.

IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals, the day and year first above written.

WITNESS: ___ ___*fn6

/s/ George W. Geyer (SEAL)

George W. Geyer


/s/ Rosalie Werner (SEAL)

Rosalie Werner


The decedent passed away on May 1, 1982, some five years after his marriage to the appellant. A will dated July 13, 1981, was offered for probate, the ...

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