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HomeMy WebLinkAbout10-22-10Neil W. Yahn, Esquire Attorney LD. No. 82278 James Smith Dietterick & Connelly, LLP P.O. Box 650 Hershey, PA 17033 (717)533-3280 Attorneys for Respondent C7 IN THE COURT OF COMMON PLEAS ~ o CUMBERLAND COUNTY, PENNSYLVANIA ~ ~ ~ ~ ORPHANS' COURT DIVISION -~ ~ -"' rv - IN RE: '~ ~~_~ ~c:> _~ -~ ~ - ESTATE OF WILMA J. SCHEER, Deceased -1 ~ _ -~-; JAN ANDREW OSTERLUND GARY CASSELL OSTERLUND No. 21-09-1202 LOYAL FREDERIC OSTERLUND . Petitioners EUGENE B. SCHEER Respondent MOTION FOR RECONSIDERATION AND NOW comes, the Respondent, EUGENE B. SCHEER (herein "Respondent"), as Co-Executor of the Estate of Wilma J. Scheer, by and through his attorneys, JAMES SMITH DIETTERICK & CONNELLY, LLP, and hereby respectfully sets forth the following Motion for Reconsideration regarding Respondent's Petition to Obtain Statement of Claimants filed against Petitioners, JAN ANDREW OSTERLUND, GARY CASSELL OSTERLUND, and LOYAL FREDERIC OSTERLUND (herein "Petitioners" collectively) as follows: 1. The Decedent, Wilma J. Scheer (herein the "Decedent"), died on November 22, 2009, a resident of Cumberland County, Pennsylvania leaving a Will dated April 11, 2006 and a Codicil dated November 21, 2006 (herein the "Will" collectively), which was admitted to probate before the Cumberland County Register of Wills. ` 2. Decedent is survived by her spouse, your Respondent herewith, and her five (5) adult children from a previous marriage, namely Linda Jane Malinak (herein "Linda"), Gail Victoria McMillen (herein "Gail"), and your Petitioners herewith. 3. Linda and Gail are represented by Stephen J. Dzuranin, Esquire of Wix Wenger and Weidner. 4. Pursuant to Item Four (4) of the Will, Letters Testamentary were granted to Respondent, Linda, and Gail by the Register of Wills of Cumberland County, Pennsylvania on December 29, 2009 to administer Decedent's estate (herein the "Estate"). 5. Pursuant to Item Three (3) of the Will, Respondent is a Thirty Five Percent (35%) beneficiary of the Estate and the remaining Sixty Five Percent (65%) is to be split amongst Linda, Gail, and the Petitioners, namely Thirteen Percent (13%) for each child. 6. Among the assets within the Estate is Decedent's collection of approximately One Hundred Seventy Nine (179) Maple Leaf Gold Coins (herein the "Coins") valued at approximately One Thousand Dollars ($1,000.00) a piece. 7. On or about November 30, 2009, Petitioners, Linda, and Gail went to Respondent's residence to distribute the Coins allegedly under the terms of the Will (only 8 days after the Decedent's death). 8. As such, Thirty Five Percent (35%) of the Coins, namely Sixty Two (62), were distributed to Respondent and Sixty Five Percent (65%), namely One Hundred Seventeen (117) Coins, were distributed to Linda, Gail, and Petitioners. 9. Respondent previously owned Sixty Seven (67) Maple Leaf Gold Coins (aside and separate from the above Coins accrued by Decedent), thereby bringing his own personal collection to a total of One Hundred Twenty Nine (129). 10. Following the above distribution of the Coins, Petitioners alleged that "some of the Coins", approximately Thirty Five (35), were not intended to be distributed to Respondent and suggested that ownership had passed to them in some form of a gift. 11. Petitioners have essentially brought a claim against the Estate to return approximately Thirty Five Thousand Dollars ($35,000.00) worth of assets without any evidence.l 12. Pursuant to which, on or about August 12, 2010, Petitioners filed a Petition to Place Assets in Escrow seeking an Order form this Honorable Court requiring Respondent to place all of his Coins (129 in sum) in escrow, pending adjudication of the claim presented by Petitioners. 13. In response thereto, on or about August 31, 2010, Respondent filed a Petition to Obtain Statement of Claimants (herein the "Petition") seeking to have the Petitioners bring forth the evidence supporting their claim regarding the Coins as Respondent avers they are incompetent witnesses under the Pennsylvania Dead Man's Rule, 42 Pa. C.S.A. § 5930. 14. Decedent had an actual right or interest in the matter at issue which passed to Respondent who, as a Co-Executor of the Estate, represents Decedent's interest and is a party of record to the present litigation. 15. Petitioners' interests are adverse to those of Decedent's interests and now to that of the Estate as they are inconsistent with the terms and desires expressed by Decedent in the Will. 16. Argument on the Petition was held on or about October 7, 2010 in which this Honorable Court expressed two (2) concerns regarding Respondent's requested relief: (1) that Remarkably Attorney Dzuranin has suggested that he may issue the Accounting to provide that the Coins were allegedly gifted to the Petitioners when the only evidence he has to support such a posture is the oral declarations of Gail and Linda and the Petitioners (the very testimony that would be inadmissible premised upon the Dead Man's Act). the Court may lack authority to order the Petitioners to present their evidence; and (2) that the order itself may be the equivalent of discovery, thereby waiving the Dead Man's Statute. 17. Montgomery County Orphans Court Rule 6.10 D (2)(b) provides: "Claimant's statement -the attorney for claimant shall file with the Clerk, prior to the hearing, a written statement of all material facts relied upon and shall serve a copy thereof on the attorney for accountant or other contesting parties at least five days prior to the hearing in the manner provided in Rule S.1B." PA Montgomery Cty. Orph. LR 6.10 D (2)(b). 18. Although Cumberland County does not have Rule 6.10 D (2)(b) codified in its own local rules, the above regulation does provide this Court with prior authority to order such a statement from Petitioners. 19. Furthermore, Rule 6.lOD (2)(b) also indicates that such an order is not the equivalent to discovery and therefore not a waiver of the Dead Man's Statute. 20. Moreover, in determining whether an act of discovery has occurred, thereby causing a waiver of the Dead Man's Statute, Pennsylvania Court's have consistently held that "a central inquiry under this analysis of waiver...is whether the estate has engaged in the equivalent of placing the adverse party on the witness stand." Estate of Hines, 2004 Phila. Ct. Com. Pl. LEXIS 132 (2004) (emphasis added). 21. "The cases discussing the waiver principle concluded that it is the act of instituting discovery by the person seeking to plead the adverse party's incompetence that is important, not whether those depositions or interrogatories are eventually used at trial." Rosenthal v. Kamer, 40 Pa. D. & C.3d 291, 293 (Bucks 1985) (emphasis added); see also Perlis v. Kuhn, 202 Pa. Super. 80, 195 A.2d 156 (1963). 22. "It is the act of the party enjoying the benefit of the Dead Man's Act in instituting discovery procedures, and not the act of the court in ordering the discovery which constitutes the act of waiver." Estate of Bolinger, 24 Pa. D. & C.3d 760 (Fayette 1980) quoting Vinski v. Holfelder, 118 P.L.J. 375 (1970) (emphasis added). 23. As shown, the waiver of the Dead Man's Statute can only be effectuated through actions of the Decedent's representative, namely the Estate. 24. An order from this Honorable Court requiring the Petitioners to present their statement of claim is not an action of the Estate and is therefore not the equivalent of engaging in discovery. 25. Respondent avers that Petitioners have no other evidence beyond their own, self- interested, incompetent testimony (as barred by the Dead Man's Statute) to support their claim. 26. Respondent further avers that the purpose of the Dead Man's Statute, as outlined in the attached precis (see Exhibit "A"), is to prevent the injustice that would result from permitting a surviving party to a transaction to testify favorably to himself (in this case, an alleged gift) and adversely to the interest of a decedent, when the decedent's representative would be hampered in attempting to refute the testimony or be in no position to refute it, by reason of the decedent's death. Hall Est., 517 Pa. 115, 129, 53S A.2d 47 (1987). 27. While counsel is not seeking to remove Linda and Gail as Co-Executrixes at this stage, Respondent avers grounds for their removal have been established in the event the Co- Executrixes proceed with waiving the Dead Man's Statute, it is likely that both will be called as witnesses and acting in conflict with the Estate; although Attorney Dzuranin has stated that he does not believe the Estate has a duty to preserve the Dead Man's Act. 28. The grounds for removal of a personal representative are set forth in Section 3182 of the Probate, Estate and Fiduciaries Code, 20 Pa.C.S. § 3182, which provides as follows: "The court shall have exclusive power to remove a personal representative when he: (1) is wasting or mismanaging the estate, is or is likely to become insolvent, or has failed to perform any duty imposed by law; (2) deleted; (3) has become incapacitated to discharge the duties of his office because of sickness or physical or mental incapacity and his incapacity is likely to continue to the injury of the estate; (4) has removed from the Commonwealth or has ceased to have a know place of residence therein, without furnishing such security or additional security as the court shall direct; (4.1) has been charged with voluntary manslaughter or homicide, except homicide by vehicle, as set forth in section 3155 (relating to persons entitled) and 3156 (relating to persons not qualified), provided that the removal shall not occur on these grounds if the charge has been dismissed, withdrawn or terminated by a verdict of not guilty; or (5) when, for any other reason, the interests of the estate are likely to be jeopardized by his continuance in office." 20 Pa.C.S § 3182. 29. It is important to note that Section 3182(5) above does not require a showing that the interests of the estate are definitely jeopardized. That section requires only a likelihood that such interests will be jeopardized, such as a conflict of interest (emphasis added). Roadcap Estate, 71 Pa. D. & C.2d 753 (1975). 30. One of the inherent duties imposed upon executors in administering an estate is the duty of impartiality. "A personal representative is required to administer decedent's estate with complete fidelity and honesty. He must treat all persons having an interest in the estate fairly, justly and in an impartial manner." Finney Estate, 5 Pa. D. & C.2d 604 (1956). 31. The just administration of an estate requires a disinterested attitude on the part of a personal representative, and the orphans' court division may remove an executor who holds a claim to the bulk of an estate and where litigation is likely between the executor and the heirs, so that the interests of the estate are likely to be jeopardized by the executor's continuance in office. In re Henry's Estate, 54 Pa. Super. 274, 1913 WL 4781 (1913). 32. In the matter present before this Honorable Court, Linda and Gail's conflict of interest has and may jeopardize their administration of the Estate by waiver of the Dead Man's Statute and subjecting it to unnecessary and costly litigation. 33. This unnecessary litigation can be adequately vetted now as opposed to litigation of a dead hand's alleged statements reaching beyond and disfiguring this process with costly hearings and evidence. 34. Respondent therefore respectfully requests this Honorable Court reconsider the Petition and order Petitioners to file a written statement of their claim now, to determine whether Petitioners even have a good faith factual basis to proceed with this claim prior to the issuance of the Accounting. WHEREFORE, Respondent respectfully requests that this Honorable Court reconsider the Petition and enter an Order requiring Petitioners to file a written statement of their claim to determined if Petitioners are incompetent witnesses under Pennsylvania Dead Man's Rule, 42 Pa. C.S.A. § 5930. Respectfully submitted, JAMIE; ~1~H, DIETTERICK & CONNELLY, LLP Date: l~?~ 'O ~--~~ Neil ~V. Yahn Attorney I.D. No. 82278 134 -'Sine Avenu PA 17036 (717) 533280 Attorney for Respondent VERIFICATION PURSUANT TO PA R.C.P. No.1024(c) NEIL WARNER YARN, ESQUIRE, states that he is the attorney for the party filing the foregoing document; that he makes this verification as an attorney, because the party he represents lacks sufficient knowledge or information upon which to make a verification and/or because he has greater personal knowledge of the information and belief than that of the party for whom he make this verification; and/or because the party for whom he makes this verification is outside the jurisdiction of the Court, and verification of none of them can be obtained within the time allowed for the filing of the pleading; and that he has sufficient knowledge or information and belief, based upon his investigation of the matter averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Dated: ~~ z-z ~~ Neil W. Yahn, Esquire Attorney I.D. No. 82278 James Smith Dietterick & Connelly, LLP P.O. Box 650 Hershey, PA 17033 (717)533-3280 Attorneys for Respondent IN THE COURT OF COMMON PLEAS ' CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION IN RE: ESTATE OF WILMA J. SCHEER, Deceased JAN ANDREW OSTERLUND GARY CASSELL OSTERLUND No. 21-09-1202 LOYAL FREDERIC OSTERLUND Petitioners EUGENE B. SCHEER Respondent CERTIFICATE OF NON-CONCURRENCE Pursuant to the Cumberland County local rules, the undersigned hereby certifies that counsel for the Petitioners and counsel for the Co-Executrixes have been provided a true and correct copy of the Motion contained herein, as well as a copy of the Proposed Order, and said counsel does not concur in Respondent's Motion for Reconsideration. Date: ~~ Zy ~~ Respectfully submitted, JAMES SMITH DIETTERICK & CONNELLY, LLP By: __ N ' Warner hn, Esquire ttorney I.D. 82278 .O. Box 650 Hershey, PA 7033-0650 (717) 533-3 0 ttorney Respondent EXHIBIT A vot. ~~ 2d 177 ~' Understanding the Dead Man's Rule Paper presented to Pennsylvania Bar Institute at the 8th Ar-nual Estate Law Institute in 2001 by J. Brooke Aker, Esquire of Smith, Aker, Grossman & Hollinger, LLP, Norristown, Pennsyl- vania. Reprinted with permission of Pa. Bar Institute. Contents In General ..............................................178 Three Basic Conditions ...................................181 (1) Decedent's interest ...............................181 (2) Adverse interest of witness ................... ....182 (3) Who represents decedent's interest .................184 Three Statutory Exceptions ...............................184 Waiver of the Rule .......................................187 Parties Not Barred .......................................190 Identification of Documents ...............................191 Wi1lContests ............................................192 Intestacy ...............................................192 Spouse's Election ........................................192 Family Exemption .......................................194 Claim as After-Married Spouse ............................194 Contract to Will .........................................194 Claim for Services ............................. ........195 Severance ...............................................195 "Lunatic" Rule ..........................................195 178 Understandi~ag the Dead Man's Rule voL. zs, 2a In General Statutory Rule Current statutory provisions are §§5930-5933 of the Judicial Code, 42 Pa. C.S.A. §§5930-5933. Judicial Code §§5930-5933 are almost identical to original Dead Man's Rule in Act of May 23, 1887 P.L. 158, §5 subsections (e) and (f) and §§6 and 7. At common law, parties to a suit and others interested finan- cially in its outcome, whether the defendant was living or dead, were prohibited from acting as witnesses because of their personal interest: 46 Mich. L.R. 856; 94 U. of Pa L.R. 330. The temptation to falsify in such situations was considered to be too great for the average witness to resist. This rule was abolished in England as to interested persons in 1843 and as to parties in 1851: 58 Amer. Juris., Witnesses, §159 et seq. This complete disqualification.. apparently existed in full force in Pennsylvania until changed by statute: cf. Post v. Avery, 5 W. & S. 509 (1843). It was not until the Act of 1869, P.L. 30, that parties or interested persons were made competent witnesses, but in the same Act it was provided, inter alia, that "...this act shall not apply to actions by or against execu- tors, administrators or guardians...." Then came the Act of 1887 P.L. 158, §5(e). The general rule is that all witnesses are competent unless the requirements of the statute are met. Pennsylvania Rule of Evidence 601(a) provides that "Every person is competent to be a witness except as otherwise provided by statute or in these Rules." "The law of incompetency under the Dead Man's Statute ... is well-set- tled. The party challenging the competency of a witness has the bur- den of proving incompetency:" Estate of McFetridge, 472 Pa. 546, 550, 372 A.2d 823, 825. Where applicable, the Dead Man's Rule results in incompetency as to any fact before death, not merely as to transactions with the decedent: Swieczkowski v. Sypniewski, 294 Pa 323, 144 A. 141. A party barred by the Dead Man's Rule is competent to file an answer: Weaver v. Welsh, 325 Pa. 571, 191 A. 3. The Act applies to proceed- ings in any tribunal (Crosetti's Est., 211 Pa. 490, 60 A. 1081) and applies whether the estate is plaintiff or defendant: Uhl v. Mostoller, 298 Pa. 124, 148 A. 61. A surviving party is competent as to facts existing after death, even though by inference their existence prior to death is shown: I° ~ ~ ~f ~ VoL. 23, 2a U~aderstanding the Dead Man's Rule 179 ! ~ { ~~ ~ I i ' ~~ Hall Est., 517 Pa. 115, 535 A.2d 47. There is no prohibition against ', ~ ~ testimony as to post-death matters: Laney v. Heenan, 81 Pa 185; ~ `~ Keating v. Nolan, 51 Pa. Super. 320. However, whether the pro- ` ~< posed testimony relates to an existing post-death fact or to a pre- ~ death matter can often be difficult of determination: cf. Raue~zzahn v. 5igman, 383 Pa. 439,119 A.2d 312, and Adams v. Edward, 115 Pa. 211, 8 Atl. 425, with Bennett v. Bennett, 32 West. 155, Smith Est., 64 Montg. 77, and Beresford Est., 35 Del. 106. In Keating v. Nolan, 51 Pa. Super. 320, the court ruled that the '. Dead Man's Rule did not bar testimony as to the date of decedent's i death. The court said h i ~~, This was an action of ejectment for an undivided one- t fourth part of a lot alleged to have been conveyed by the Phila. "~~ & Reading Coal & Iron Company to Mary Ellen Nolan. The _. deed purports to have been executed in March, 1873, and was recorded in May of the same year. The plaintiff testified that her mother, Mary Ellen Nolan, ~'~' died in the latter part of 1874. The rejection of the defendant's ' h offer to prove by James Nolan, one of their number, that she ~'' died in 1871, is the subject of the sole assignment of error. ~` As applied to the question for decision, the controlling words of clause (e), sec. 5, of the Act of May 23,1887, P.L. 158, ~,i° are "any matter occurring before the death of said party." j ~ Obviously, to testify as to the date of the death of the party is ,~~'' not to testify to any matter occurring before his death, and, ,~ therefore, is not within the letter of the exception to the general i~ rule of competency. ~`~~ At any rate, the principle of the latter class is well settled '!':!!11 and is applicable, a fortiori, to testimony of the mere fact of the cif j date of the death of the party to the thing or contract in action, ` ~! whose right therein or thereto has passed, either by his own act ; ~I or the act of the law, to a party on the record who represents his ' ' interest in the subject in controversy. That the admission of such testimony by an adverse party, in the present case, would ` ! have laid ground for an inference, however strong, that the deed purporting to have been executed in 1873 was not deliv- ered toMary Ellen Nolan, was not valid ground for excluding it. d'~, .; r i'~. II' ~;'~,, 180 Understanding the Dead Man's Rule vot. za, za As it is not claimed that the witness was disqualified for any other reason, the offer should have been admitted. Purpose of the Rule In Hall Est., 517 Pa 115, 129, 535 A.2d 47, the purpose of the Rule was stated "to prevent the injustice that would result from- permitting a surviving party to a transaction to testify favorably to himself and adversely to the interest of a decedent, when the dece- dent's representative would be hampered in attempting to refute the testimony or be in no position to refute it, by reason of the dece- dent's death:' Attempts to Abolish the Rule Senate Bill No. 126 of the 1963 session of the General Assembly which died in committee was the occasion for panel discussions on whether the objective of repealing the Dead Man's Act should be endorsed: see 35 Pa. Bar Assn. Qu. March 1964. Judge Alfred L. Taxis, Jr., then President Judge of the Orphans' Court of Mont- gomery County, at p. 179 of the cited Quarterly, and Sidney Schulman, Esquire, of the Philadelphia Bar, at p. 183, urged repeal of the Act and William H. Eckert, Esquire, of the Allegheny County Bar at p. 192 urged its retention. Judge Taxis and Mr. Schulman were in accord with "All the leading scholars in the law of evidence, Morgan, Chafee, Wigmore, Sunderland, Thayer, McCormick, Chadburn, Ladd and others" who had condemned the Rule. Mr. Eckert was of the opinion "that human nature has not changed since 1887" when the Dead Man's Rule was enacted and that it "does much more good than harm." Senate Bill 176 of 1993, Printer's No. 1928 (Pennsylvania Code of Evidence), would repea142 Pa. C.S. 5930 (surviving party as wit- ness, in case of death, mental incapacity, etc.) and although passed by the Senate failed of enactment. The Pennsylvania Supreme Court Rules of Evidence adopted on May 8, 1998, although the Committee initially considered whether the Dead Man's Rule should be abolished, do not deal with the Rule, although the Committee's comment to Rule of Evidence 601 discusses the Dead Man's statute at 42 Pa. C.S.A. 5930-5933 but nowhere indicates any intent to change the Rule. The comment to Pa. R.E. 101 states "Some of our law of evidence ... is governed by statute..... The Pennsylvania Rules of Evidence are not intended to supersede these other provisions of law unless they do so expressly ~~ voL. zs, za Understanding the Dead Man's Rule 181 or by necessary implication." Despite criticism from legal scholars the Dead Man's Rule remains effective in Pennsylvania. ~~` Three Basic Conditions "In order to be disqualified as a witness under the Dead Man's Statute, three conditions must be proved: (1) the deceased must ` have had an interest in the matter at issue, i.e., an interest in the immediate result of the suit; (2) the interest of the witness must be i~' adverse; and, (3) a right of the deceased must have passed to a party of record who represents the deceased's interest:" Rider Est., 409 A.2d 397, 487 Pa. 373 at p. 377. (1) Decedent's Interest Judicial Code, 42 Pa. C.S.A. §5930 opens by stating "Except as otherwise provided in this subchapter, in any civil action or pro- ceeding, where any party to a thing or contract in action is dead, or has been adjudged a lunatic ...". "Actual interest of the testator need not be proved. Proof of a prima facie interest is sufficient. * * * The record reveals that testa- torhad aninterest inthe disputed property as a partner because the property was prima facie partnership property:" Rider Est., 409 A.2d 397, 487 Pa. 373 at p. 377. Widow's claim to U.S. Treasury Bonds in home at death of hus- band denied; executors' proof that bonds were purchased by dece- dent established prima facie case rendering widow incompetent under Dead Man's rule and making inadmissible her self-serving let- ter written after husband's death; "between husband and wife, or between people who live together, such occupancy or ownership of the place of residence raises no presumption that the personal prop- erty therein belongs to one rather than the other": Whitenight v. Whitenight, 444 Pa. 32, 278 A.2d 912. The courts view the proceeds of life insurance policies as not being a right which belonged to the decedent and therefore no one can have an interest adverse to anon-existent decedent's interest: Fulforth v. Prudential Insur. Co.,147 Pa. Super. 516, 528, 24 A2d 749. Rule bars testimony by one of four settlors of inter vivos trust on petition to rescind and set aside trust after death of one settlor: Segall Est. (No.1), 22 D. & C. 2d 768. Surviving husband is entitled to assert that real estate titled in ~~;~~~~I ~ .~ `,4 1 j -~F 'k ~- 182 Understanding the Dead Man's Rule voL. za, za name of deceased wife is not subject to inheritance tax because wife held title under resulting trust: Gadiparthi Est., 632 A.2d 942, 158 Common. Ct. 537. ~ (2) Adverse Interest of Witness The Rule specifies "...neither any surviving or remaining party to such thing or contract, nor any other person whose interest ~ shall be adverse to the said right of such deceased or lunatic party, i shall be a competent witness to any matter occurring before the death of said party or the adjudication of his lunacy ...". "One of the conditions which must be met before a witness can be properly disqualified under the Dead Man's Statute is that the interest of the witness, not simply his testimony, be adverse to the decedent. * * * In order to be adverse the interest must be one from which the witness will either gain or lose as the direct legal opera- tion and effect of the judgment": Gelb Est., 228 A.2d 367, 425 Pa. 117 at p. 121. Scrivener of contract who signed the document but who had no contractual obligation held not barred: Pavlinko Est., 160 A.2d 554, 399 Pa. 536 at p. 543. In Gaston Est., 361 Pa 105, 62 A.2d 904, it was held that a parent who as guardian of the estates of his minor children entered into a contract with a third party for the sole benefit of his minor children was not barred from testifying in sup-. port of the contract, the court reasoning as follows: (361 Pa. at p. 108) "Appellee argues that the Act disqualifies Gaston as a wit- ness, first, because the decision in this case will directly affect his emoluments as guardian of his minor children. If the admin- istrator is deprived of commissions, the fund administered by Gaston as guardian will be increased, thereby increasing his compensation. Second, because there is a legal duty resting on him to provide support and maintenance for his minor children. It is contended that therefore, he, Gaston, has a direct pecu- niary interest in the subject in controversy." (361 Pa. at p. 109) "To exclude a witness, it is necessary that he should have a vested interest, not in the question, but in the event of the suit. It must be an interest, that the judgment in the cause would oper- ate upon; for if by the event, he would neither acquire or lose a right, nor incur a responsibility, which the law recognizes, he is competent. Every other kind of interest goes to credibility. Vot. 23, 2a Understanding the Dead Man's Rule 183 "The true test of the interest of a witness is that he will either gain or lose, as the direct legal operation and effect of the judgment, or that the record will be legal evidence for or against him in some other action. It must be a present, certain and vested interest, and not an interest uncertain, remote or contingent: C~reenleaf's Ev., vol. i, §390. "By no finding of the court below could the witness Gaston have acquired a `present, certain and vested interest' in the `subject in controversy'. His relationship is not sufficient to make his interest adverse to that of the deceased administrator. "The fact that William Gaston might sometime in the future profit pecuniarily if it was judicially found that what he testified to was true, does not render him incompetent as a witness although it should be considered by the adjudicating tribunal in passing upon his credibility and weighing the proba- tive value of his testimony:' In C~r-asso v. John Hancock Mutual Life Insurance Co., 206 Pa. Super. 562, 214 A.2d 261, the court said "persons claiming insurance proceeds against designated beneficiaries are not witnesses adverse to any rights of the deceased so as to render them incompetent to testify." Claim by attorney against decedent's estate for lifetime ser- vices based on quantum meruit; attorney is barred (Cecchine Est., 336 Pa Super. 111, 485 A.2d 454) but his secretary is not: Brourn Est., 63 D. & C. 2d 524. On personal reimbursement claim, administrator is barred (Kubitsky Est., 11 FIDUC. REP. 2d 84) but a fiduciary's right to compensation does not make him incompetent: Judicial Code, 42 Pa. C.S.A. §5921. Claimant to property by adverse possession barred ~' (Lieber v. Eurich), 201 Pa. Super. 186, 192 A.2d 159) as is claimant to property in possession of decedent: Carr Est., 371 Pa. 520, 92 A.2d 213. ~- Agent or attorney without personal interest is competent: !;, Weaver v. Welsh, 325 Pa. 571,191 A.3. Interest in the possible result does not render witness incompetent; the adverse interest must be in the case tried: C~ildner v. First Bank, 342 Pa. 145,19 A.2d 910. Where both parties are deceased, all persons interested are incompetent: Crosetti's Est., 211 Pa. 490, 60 A. 1081. Next of kin of deceased party is competent against a living party: Crosetti's Est., 211 Pa. 490, 60 A. 1081. ~, hf ~- ~: I j ~ ;~ t ;" i;~ ~~ ~' ~, F ;'s ;, i ~ k I~~~~~~ 184 Understanding the Dead Man's Rule voL.23,2a (3) Who Represents Decedent's Interest §5930 provides ".. ,and his right thereto or therein has passed, either by his own act or by the act of the law, to a party on the record who represents his interest in the subject in controversy, ...". Although normally the personal representative represents the decedent' s interest, this is not always the case. Where the issue is validity of an inter vivos gift, if donee by evidence other than his own testimony can establish that the gift is prima facie valid, then the donee represents the decedent's interest and can then testify free of the Dead Man's Rule and the person who challenges the gift is barred: Long v. Lonq, 361 Pa. 598, 601, 65 A.2d 683; Post Est., 500 Pa. 420, 456 A.2d 1360; Stanis v. Simpson, 452 Pa. 57, 305 A.2d 29. Where an heir attacks a deed executed by decedent which is prima facie valid, the heir is regarded as having an interest adverse to the right of the decedent and is therefore precluded from testify- ing by the Dead Man's Rule: In Interest of Roy, 423 Pa. Super. 183, 620 A.2d 1172. Documentary evidence of mortgage payable to husband and wife established prima facie gift from husband to wife; widow there- fore not barred by dead man's rule in action by deceased husband's executor to recover the mortgage; mortgage passed to widow: Carnevalino Est., 435 Pa. 366, 257 A.2d 546. On petition to show cause filed by executor to recover balance in joint bank account with right of survivorship between decedent and daughter containing only decedent's money, daughter cannot invoke Dead Man's Rule to bar executor from calling her as on cross- examination; executor's evidence rebutted the presumption of PEF Code 6304 and balance in account awarded to decedent's estate: Benford Est., 21 FIDUC. REP. 2d 364. In Friedman v. Kinnen, 452 Pa. 365, 305 A.2d 3, a mortgagor seeking to reduce a mortgage due a deceased mortgagee from $7,500 to $3,000 was barred by the Dead Man's Rule because the mortgagor made no independent showing of a gift by the decedent so his interest remained adverse to that of the decedent. Three Statutory Exceptions (When the Rule does not apply) Judicial Code §5930, after specifying the Three Basic Condi- tions discussed above"all of which must exist before the Dead Man's Rule becomes applicable, goes on to specify three exceptions where the Rule does not apply even if the Three Basic Conditions exist. vot. z3, za Understanding the Dead Man's Rule 185 .•. (4) Action Involving Partners or Joint Promisors Immediately following the §5930 statement of the Three Basic Conditions, §5930 goes on to state "...unless the action or proceeding is by or against the sur- viving or remaining partners, joint promisors or joint promisees, of such deceased or lunatic party, and the matter occurred between such surviving or remaining partners, joint promisors or joint promisees and the other party on the record, or between such surviving or remaining partners, promisors or promisees and the person having an interest adverse to them, in which case any person may testify to such matters; ..." Beck v. Beck, 435 Pa. Super. 449, 646 A.2d 589, involved a father, intending only to subordinate his judgment lien against property of his son and daughter-in-law, mistakenly satisfied his judgment. Following son's death, the daughter-in-law testified that father intended to forgive the loan, and she asserted that the Dead Man's Rule barred the father's testimony as to mistake. The court ruled the father's testimony was admissible because the Dead Man's Rule did not apply because the claim was against the surviving joint obligor who was available to testify and the "matter occurred between the surviving promisor and the other party of record." (5) Possessory Action Where One of Several Defendants Disclaims The second statutory exception in Judicial Code 42 Pa. C.S.A. §5930 states "... or, unless the action is a possessory action against sev- eraldefendants, and one or more of said defendants disclaims of record any title to the premises in controversy at the time the suit was brought and also pays into court the costs accrued at the time of his disclaimer, or gives security therefore as the court in its. discretion may direct, in which case such disclaiming defendant shall be a fully competent witness; ..:' Black's Law Dictionary (6th ed.) defines "possessory action" as "An action which has for its immediate object to obtain or recover the actual possession of the subject-matter; as distinguished from an action which merely seeks to vindicate the plaintiff's title, or which involves the bare right only; ..." Africa v. Trexler, 232 Pa. 493, involved an action in ejectment commenced in 1908 where one of the defendants John L. Trexler ,,:~ ~,;, ~!`~ ', 'i ;~ ';i ~, ,I <<,~ i-~ ;:: ,i`' '~j,:~ ;,, 186 Understanding the Dead Man's Rule voL. zs, za conveyed his undivided one-half interest in the premises to Jacob F. Trexler by deed dated January 25,1905 and recorded March 8,1909. When the case was called for trial on February 9, 1909, John L. Trexler "was permitted to withdraw his plea of not guilty and to file a disclaimer `of all title or claim of title or of possession to the premises described in the writ, ...and that he had neither title or possession of said lands at the time said suit was brought.' He also filed a bond to secure the payment of the accrued costs." After quoting the statutory second exception in §5930 the court said: It relieves the witness from disqualification in actions of ejectment where he files a disclaimer and secures the payment of the accrued costs. In other words, when a codefendant in an action of ejectment is called as a witness and complies with the conditions imposed by this clause by filing a disclaimer and securing the cost he is relieved from the disability imposed upon a surviving party having an interest adverse to that of the deceased party.... The competency of such a witness does not depend upon his interest in the subject in controversy, but whether he has filed a disclaimer and has paid or secured the payment of the costs which have accrued in the action. The wis- dom of this provision we may not question; that was solely for the legislature, and its command must be obeyed. It follows that John L. Trexler having filed his disclaimer and secured the costs was a competent witness to testify to what occurred between the witness and the county treasurer in regard to his effort to pay the taxes assessed against the land in dispute. The requirement in this statutory exception for payment of costs is strictly enforced. In Burke v. Burke, 240 Pa. 379, the court said: The disclaimer of Mrs. Keating filed on the trial of the cause by the defendants did not make her a competent witness. Where one relies on a statute to establish his competency to testify, it is incumbent upon him to bring himself clearly within its provisions. The clause in question excepting a surviving party from the provisions of the statute confers competency on any one of the several defendants in an action of ejectment if he disclaims title to the premises in controversy, "and also pays into court VoL. 23, za U~aderstanding the Dead Man's Rule 187 the costs accrued at the time of his disclaimer or gives security therefore, as the court in its discretion may direct." The dis- claimer, therefore, was not effective until the accrued costs had been paid or secured. This was not done, and, therefore, it is manifest that the filing of the disclaimer did not make Mrs. Keating a competent witness. (6) The Issue is Devisavit Vel Non or the Property of a Deceased Person The last of the three exceptions where the Rule does not apply states "... or, unless the issue of inquiry be devisavit vel non, or be any other issue or inquiry respecting the property of a deceased owner, and the controversy is between parties respectively claiming such property by devolution on the death of such owner, in which case all persons shall be fully competent witnesses:' This language was relied upon by the court in Pagnotti v. Old Forge Bank, 429 Pa. Super. 39, 631 A.2d 1045, where a mother, after opening a bank savings account, later added her son's name. When the son died his administrator claimed one-half of the account as a tenant in common and objected to mother's right to testify as being barred by the Dead Man's Rule. The court allowed the mother to testify that the account was intended as joint with right of survivor- ship. Judge Popovich in stating the unanimous opinion of the three- judge panel of the Superior Court relied on McClain Est., 481 Pa 435, 392 A.2d 1371, annot. Fiduciary Review, March 1979, for recog- nition of the competency of Katherine to testify since "The Dead Man's Act renders the witness' testimony competent where the con- troversy over decedent's property is between parties respectively claiming such property `by devolution on the death of the owner'." Under this exception, Katherine's testimony concerning the occasion for adding the name of her son to the savings account dispelled any doubt concerning the "intent at the time the account [was] created." Waiver of the Rule i~ ~' 1 k }~ ~~ "~ a ,~y! !ii t ~i ~1 ~~~ ' ~ ;,~, ~' ~l i ';~ . '~ ', F: A witness otherwise barred by the Dead Man's Rule may tes- tify if any of the following occur: (a) The incompetent witness is called to testify as on cross- 188 Understanding the Dead Man's Rule vot,. za,za examination: Judicial Code, 42 Pa. C.S.A. §§5932 and 5935; Hosfeld Est., 414 Pa. 602, 202 A.2d 69; Fiduciary Review, March 1961, p. 3, ; Where a witness barred by the rule testifies in his own behalf as to ; post-death facts and is cross-examined as to pre-death matters, he becomes competent to testify to pre-death matters: Kofsky Est., 487 Pa. 473, 409 A.2d 1358. Where objector to alleged gift calls alleged donee as on cross-examination, donee may testify free of Dead Man's Rule: Peters Est. (O.C. Div. Perry, 20 FIDUC. REP. 2d 355. (b) A good faith release or disclaimer of his interest is made by the incompetent witness made ante litem motam. The second sen- tence of 42 Pa. C.S.A. §5932 provides that "Such person [referring to "Any person who is incompetent under section 5930] shall also become fully competent for either party by filing of record a release or extinguishment of his interest:' The Official Note says that §5932 is "substantially a reenactment" of 1887 P.L.158 §6 which contained the words "in good faith" which were omitted in 42 Pa. C.S.A. §5932 but presumably will continue to be required. In Lynch Est., 427 Pa. 476, 235 A.2d 412, the court said We have consistently adhered to the position adopted in Darragh v. Stevenson,183 Pa. 397, 403, 39 Atl. 37, 38 (1898) that "an assignment by a party to a controversy, made only for the purpose of enabling him to sustain the suit by his testimony, is not made in that good faith which the statute intends." It requires no further statement of authority to sustain the trial court's conclusion that the assignment here was not made in good faith in light of Mrs. Byrne's testimony that no considera- tion was given for the assignment and that the assignment was made to permit her to testify. Black's Law Dictionary (6th ed.) defines "ante litem motam" in this language At time when declarant had no motive to distort truth. Before suit brought, before controversy instituted. Also, before controversy arose. The burden of proving good faith rests on the otherwise incom- petent witness: Firkaly Est., 11 FIDUC. REP. 565. In action to sur- charge personal representative for paying claimant, claimant is not barred: Matthews Est., 431 Pa. 616, 246 A.2d 412, annotated in Fiduciary Review, Nov. 1968, p. 2; ef. Fross's Ap., 105 Pa. 258. (c) There is prior testimony by another surviving party which is adverse to the claimant who is otherwise barred by the Dead Man's voL 2s, za Understanding the Dead Man's Rule 189 Rule: Judicial Code §5933(a); Gelb Est., 425 Pa. 117, 228 A.2d 367, annotated in Fiduciary Review, May 1967. The Supreme Court in Gelb Estate said at page 122: "Under this exception to the Dead Man's Statute when the party representing the decedent calls a witness who testifies adversely to the interests of the surviving party about a trans- . action which occurred in the presence of the survivor and the witness, the surviving party is rendered competent to testify in contradiction of said witness." Testimony by others that there was no conversation by dece- dent and alleged donee did not qualify donee to testify under 42 Pa. C.S.A. §5933(a): Petro Est., 694 A.2d 627, appeal denied, 706 A.2d 1213, 550 Pa 719. Survivor is not competent unless the living witness is called by the estate (Steel v. Snyder, 295 Pa. 120,144 A. 912), not by the survivor: Patterson v. Hughes, 236 Pa. 315, 84 A. 829. Where there is testimony about statements by decedent not made in the presence of claimant and the witness, the exception is not applica- ble: Gavula Est., 490 Pa. 535, 417 A.2d 168. Query whether the Rule is waived where the "living witness" is called as the court's witness: 4 see Vallish Est., 431 Pa. 88 at p. 99, 244 A.2d 745. (d) Where the party entitled to invoke the Rules pursues dis- covery from the claimant who is otherwise barred (Anderson v. Hughes, 417 Pa. 87, 208 A.2d 789; Perlis v. Kuhns, 202 Pa. Super. 80, 195 A.2d 156) even if the results of the discovery are not used at trial: GJD v. Johnson, 447 Pa. Super. 340, 669 A.2d 378. Inspection of books waives the rule: Moss v. Klebanoff, 44 D. & C. 2d 142. Informal request for documents may constitute a waiver (Bolinger Est., 3 FIDUC. REP. 2d 274) but request for itemized statement of claim may not: Lorah Est., 2 Frnuc. REP. 2d 34, annotated in Fiduciary Review, Feb. 1982, p. 3; see Olson v. North American Industrial Supply, 441 Pa. Super. 598, 658 A.2d 38. No waiver by motion for more specific pleading: Davis Est., 465 Pa. 94, 348 A.2d 134. No waiver by notice of discovery while all parties are alive and then filing notice of cancellation of all discovery after defendant's deaths but prior to commencement of depositions or receiving answers to interrogatories: Blackwell v. Koch,19 FIDUC. REP. 2d 51. Schroeder v. Jaquiss et al., 21 Finuc. REP. 2d 289, involved a Civil Division action against multiple parties, the executrix of a deceased physician and two living physicians and a hospital. The executrix asserted the Dead Man's Rule in her New Matter i ~l ~ ,. i !' i~ i ~'% ~; :,~ ,, , ,, I ~ ~'Ei i~ E! fE ~,'~ E' f ~' .i,!' ,~f, ~I S1 ~~ i ~{ ',?~ `. '~ '; ;1 190 Understanding the Dead Man's Rule vot. zs, 2a response to the complaint. Plaintiffs gave notice to all defendants of the taking of depositions. Executrix failed to appear at the depos- tions, relying on her New Matter assertion of the Dead Man's Rule. The depositions proceeded and the testimony included pre-death events. Plaintiffs then made an oral motion in limine to permit testi- mony otherwise barred by the Dead Man's Rule. The court, relying on Anderson v. Hughes and Perlis v. Kuhns, supra, said Defendant Jaquiss has asserted the Rule on every conceiv- able occasion before the undersigned, admittedly "in an abun- dance of caution." However, the one place where defendant Jaquiss did not expressly assert the Rule was during discovery depositions taken by other parties, at which defendant Jaquiss chose not to appear. The Rule furnishes a continuously waivable protection that must be vigorously asserted on any occasion where waiver may occur. Certainly neither plaintiffs nor the co-defendants had any duty to assert an objection on behalf of defendant Jaquiss to the competency of any witness they were deposing. It was up to defendant Jaquiss to do this. Her failure to appear at the deposition resulted in her not objecting to questions whose answers would violate the Dead Man's Rule. The protection of the Rule has therefore been waived and plaintiffs and the co- defendants may testify as to pre-death matters subject to any evidentiary rules. See discussion below on severance. Parties Not Barred The Dead Man's Rule does not bar testimony by the spouse of a person who is barred: Grossman Est., 486 Pa. 460, 406 A.2d 726, annotated in Fiduciary Review, Dec. 1979, p. 4. Where there are several claimants against a decedent's estate,. each may testify for the other, but their testimony will be received with suspicion: Houston's Est., 318 Pa. 300,178 A. 479. When a corporation is the claimant, an employee of the corpo- ration is competent (Strickler's Est., 328 Pa. 145, 195 A. 34) but not an officer, director or stockholder (Swoope's Est., 317 Pa. 584,177 A. 748) unless the corporate-claimant is snot-for-profit corporation: C~roome's Est., 337 Pa. 250,11 A.2d 271. As to a non-profit corpora- tion, testimony of superintendents and trustees are not barred: Vot.23,2d Understanding the Dead Man's Rule 191 w =;; Burkett Est., 426 Pa. 617, 233 A.2d 215 affig 16 FIDUC. REP. 469 Identification of Documents ~~~ ; ` A witness otherwise barred by the Dead Man's Rule is not pre- ~° eluded from identifying documents even though such documents ~" relate to pre-death events or transactions. In Rider Est., 409 A.2d `' 397, 487 Pa. 373 at p. 379 the Pa. Supreme Court said: is "The Dead Man's Statute applies only to testimony. ~~ Written evidence offered by an adverse surviving party is not ~` rendered incompetent by the Dead Man's Statute. Rauenzahn v. Sigman, 376 Pa. 26, 31,101 A.2d 688, 690 (1954). The instant exclusion of documents, which documents are not in the record, was based solely on an objection grounded upon the Dead Man's Statute. The record indicates the documents consisted of can- . celled checks and bills of sale. Some of these documents identi- k fled on their faces the items purchased, the prices paid, and the identity of the purchaser. The lower court erred in not consid- ering whether the written documents offered by appellant proved his ownership of the disputed property." `~~ It may be testified that a document was lost or stolen: Lepper's Est., 106 Pa. Super. 123, 161 A. 569. Thus, business or professional records are admissible free of the Dead Man's Rule provided they can be established either under the Shop-book Rule as books of original entry or under the Uniform Business Records as Evidence Act, Judicial Code 42 Pa. C.S.A. §6108. Although Stoneroad Est., 9 Finuc. REP. 353, and Wilson Est., 9 FIDUC. REP. 565, ruled that a physician was barred by the Dead Man's Rule from testifying to qualifying his records under the Uniform Business Records as Evidence Act, there is authority for allowing claimant-doctor to identify his records including the hand- writing of those who made the entries, on the ground that such iden- tification is of a presently existing fact: Staggers Est., 8 Pa. Super. - 260; Smith Est., 63 D. & C. 416; Carr Est., 64 Montg. 175 (dentist); Whalen Est., 17 Erie 51 (attorney); White Est., 11 Phila 100 (den- tist); McCrory v. Safier, 1 Fay. 17; cf. Keener v. Zartmann, 144 Pa. 179, 22 Atl. 889; Claney Est., 51 Pitts. (O.S.) 139. Insofar as his com- petency is concerned, the claimant against a decedent's estate is placed somewhat in the position of a living party prior to the Act of 1869 "that is, at most, he is only competent to prove upon oath the books themselves, and the books of original entries are the evidence ~.: ~, `~~I ~~~, j 'i ;~~ ', ~ ;1-. >iik ~t;' lu~ L N~ ,1, ~,. }i -~, ~~, ~r,~~, ``~,~; ~~` 192 Understanding the Dead Man's Rule VoL. 23, 2d of the transaction:" Barclay Est., 20 D. & C. 626. He may not testify that he has not been paid: Psinakis v. Psinakis, 177 Pa. Super. 250, 111 A.2d 163. See, generally Fiduciary Review, Oct. 1959 and March 1980. Will Contests The Dead Man's Rule has no application to litigation over whether a will is valid or invalid because the statute itself provides. that "all persons shall be fully competent witnesses" where "the issue or inquiry be devisavit vel non." Black's Law Dictionary, 6th ed., defines "devisavit vel non" as "The name of an issue ... to try the validity of a paper asserted and denied to be a will ...". Where the issue is interpretation of the will, the Dead Man's Rule is not applicable because the contest is between legatees as to what share each receives, not between a claimant and the estate where the claimant attempts to gain an asset of decedent which would otherwise pass under the will: Gerlach Est., 364 Pa. 207, 72 A.2d 271; Thomas Est., 457 Pa. 546, 327 A.2d 31; McClain Est., 481 Pa. 435, 392 A.2d 1371. Inte_ s_ ta~~ The statute also makes an exception where the "controversy is If between parties respectively claiming" decedent's property "by i devolution on the death of such owner." Here again, the contest is between intestate heirs and is not a contest between a claimant and decedent's estate. "The term `devolution' encompasses the transfer of a decedent's estate both by operation of law ...and by will... The terms of the statute, therefore, do not make a distinction between intestate claims vs. testate claims": McClain Est., 481 Pa. 435, 392 A.2d 1371. Spouse's Election Where a surviving spouse exercises his or her rights under PEF Code Chapter 22 to elect against decedent's will and inter vivos conveyances, where the claim is based upon an alleged com- mon law marriage, claimant is barred by the Dead Man's Rule from testifying to prove the alleged marriage: Stauffer Est., 504 Pa. 626, 476 A.2d 354. Where the issue is whether the electing spouse has forfeited his or her interest, the spouse is not barred by §5930: PEF Code ''• voL. zs, za Understanding the Dead Man's Rule r°- 193 ,~ i~ 1 (~ §2209, 20 Pa. C.S.A. §2209; Massey Est., 3 FIDUC. REP. 2d 26; ~' ~: Buzzelli Est., 9 FIDUC. REP. 2d 228. Where the surviving spouse is barred by a marital agreement from electing, the Rule applies to '. J bar the spouse from testifying that the agreement was not fil ' `' 4 enforceable: Kester Est., 486 Pa. 349, 405 A.2d 1244; Hartman Est l ., 9 FIDUC. REP. 2d 272. ~ ~'! The situation involved in Kester Estate and Hartman Estate is ~, ~ ~ not to be confused with the provisions of PEF 2209 which, as to the ~Ma issue of forfeiture of elective rights (through failure to perform a ! ! j1 duty of support or by desertion for one year or by slaying), makes '.'<<i~ the surviving spouse fully competent. ° i ~ I In Stauffer Estate, the court said "While the general policy in ! € ~ ~ this Commonwealth is to accept common law marriage ... [it].is to ~ `" ~% be tolerated and not encouraged" because proof thereof is "a fruitful source of perjury and fraud." This is an appropriate reason to apply ~'' ~ the Dead Man's Act and forbid the surviving party "to be testi- ~ mony thereon favorable to himself and adverse to the decedent, ~~ ~ ~ which the Tatter's representative would be in no position to refute," ~, the lips of the decedent having been closed by his death. €i The competency of a survivor to testify under the devisavit vel ~ "' non exception to the Dead Man's Act as recognized in McClain Est. , 481 Pa. 435, 392 A.2d 1371, annot. Fiduciary Review, March 1979 f , was considered inapplicable because the interested parties in McClain were claiming by descent against devisees, whereas the alleged spouse-claimant's testimony "does not go directly to ques- ''-'~ tions surrounding the will or the decedent's intent thereof, but ,~ . ~ rather is an attempt to establish the common law marriage." Consequently, the reason for the exception in McClain was consid- ered "not present here." In addition, the common law marriage `'~ being a civil contract is clearly proscribed by the Dead Man's Act In ' ` ~ . .remanding the case to the lower court, it was noted that the alleged _ , + ~ ~~ spouse-claimant has the right to establish her status through evi- dente of cohabitation and reputation. A footnote refers to the Act of ~ ~~; 1982, P.L. 45, amending PEF 2209 which makes a surviving spouse ` ~~;~~ competent to testify "as to all matters pertinent to his rights under ; ': is this chapter other than the creation of his status as surviving " ,~ spouse. While the footnote implies that the 1982 act does not apply I~ ~ retroactively and states that it "will prospectively render this issue ~' ' moot," the decedent having died in 1979, this conclusion is not in ~' '~'' accord with Section 13 of that Act which states that "as to 20 Pa. ~ ` 194 Understanding the Dead Man's Rule vot,. ~, 2a C.S. §2209 (relating to surviving spouse as witness), it shall be effec- tive as of June 17,1978 and shall apply to the estates of all decedents dying on or after that date." Family Exemption On claim for family exemption by alleged common law spouse, claimant is not barred from testifying by the Dead Man's Rule: Jacobs Est., 2 FIDUC. REP. 2d 68, aff d 494 Pa. 135, 430 A.2d 1153, annotated in Fiduciary Review, April 1982, p. 3. See also the last sentence in PEF Code §3121. Claim as After-Married Spouse The conclusion to the article in Fiduciary Review, April 1982, p. 3, states It is suggested that a person claiming the status of the. surviving spouse of a decedent is competent to testify in support. thereof when he or she claims (1) the family exemption (PEF 3121); (2) a share of an intestate estate (PEF 2102); (3) a share of the estate as an after-married spouse (PEF 2507(3)); but at least since the 1982 amendment to PEF 2209, is not competent to testify in support of establishing the status of a surviving spouse entitled to elective rights under Chapter 22 of the PEF Code." The same conclusion is reached in Fiduciary Review, Oct. 1984, p. 3 where it was said that Jacobs Est., 494 Pa. 135, 430 A.2d 1153, Riley Est., 2 FIDUC. REP. 2d 219, and PEF 2209 "all make it clear that the testimony of the claimant alone may be adequate to sustain a claim to the family exemption, to an intestate. share or to the status of an after-married spouse. See Dolinger Est., 4 FIDUC. REP. 2d 327, where the peti- tioner's testimony to establish her status under the intestate law was not barred by either the Dead Man's Act or PEF 2209, there being no will or elective rights involved; and Comer Est., 3 FIDUC. REP. 2d 117, where the claimant's interest was stated (at p. 119) to be `not necessarily adverse to the right of the deceased."' Contract to Will On a claim under an alleged contract to will, the claimant is barred: Nakoneczny Est., 456 Pa. 320, 319 A.2d 893. Where the claimant is a named beneficiary under the will but seeks to establish the contract to establish his priority in distribution where abate- ment is a problem, query may claimant testify? see Caruth's Est., 52 D. & C. 693. Cf. PEF Code §2701. :~~: I~ voL. ~, za Understanding the Dead Man's Rule 195 j ~i Claim for Services ~,i Compensation for lifetime services based on alleged contract ,, that decedent promised claimant would be named executor of dece- ~''" dent's estate; claimant's testimony was barred by the Dead Man's 1 Rule: Dale Est., 455 Pa. Super. 663, 686 A.2d 1370. `'' 3 Severance ~. 'ilk In Halperin v. Halperin, 32 Lehigh 587, suit was instituted against a decedent's estate and a corporate defendant. The court [ , granted the estate's petition for a severance where the Dead Man's ;%~!'~ Rule would apply to the claim against the estate but not to the claim ~ a against the corporation. Cf. Norcross v. Smith, 39 D. & C. 2d 148, '' I; where a motion to sever was denied, and Rago v. Children's ;; ~ Hospital of Pittsburgh, 121 Pitts. L.J. 307, and Metts v. Lasky, 28 I ~, Som. 389, where the courts preferred to rely on appropriate instruc- ` ~ tions to the jury. ~, "Lunatic" Rule The Dead Man' s Rule applies not only to legal proceedings involving a decedent but also to proceedings involving a party who `~~~~' ~~ "has been adjudged a lunatic." Those words existed in the original Dead Man's statute, Act of 1887 P.L. 158 §5(e) and still exist ~~,, unchanged in 42 Pa. C.S.A. §5930. ~1'',. A problem exists as to whether the statute's reference to ~ ~ "lunatic" applies to an adjudicated incapacitated person. Black's ' f' . Law Dictionary (6th ed.) defines "lunacy" as See Insanity, and defines Insanity as , ~ ~; "The term is a social and legal term rather than a medical '; ;~ one, and indicates a condition which renders the affected person unfit to enjoy liberty of action because of the unreliability of his behavior with concomitant danger to himself and others. The , h term is more or less synonymous with mental illness or psy- chosis. In law, the term is used to denote that degree of mental +' illness which negates the individual's legal responsibility or I~~ E~ capacity."- with the current definition of an incapacitated person in 5501 of the a' Probate, Estates and Fiduciaries Code " ..means an adult whose ability to receive and evaluate information effectively and communicate decisions in any way ~Ei i is impaired to such a significant extent that he is partially or ' ' , i!~ r~ 196 Understanding the Dead Man's Rule VOL. 23, 2d totally unable to manage his financial resources or to meet essential requirements for his physical health and safety." It is difficult to believe that "lunatic" in the Dead Man's statute would be triggered by a judicial appointment of a limited guardian for a partially incapacitated person and perhaps not even an appoint- ment of a plenary guardian for a totally incapacitated person. For example, in Yacabonis v. C~lvickas, 376 Pa. 247, 101 A.2d 690, and in Weiherer v. Werley, 57 Berks 26, affirmed 422 Pa. 18, 221. A.2d 133, the court ruled that an adjudication of incompetency under the Incompetents' Estates Act of 1951 was not an adjudica- tion of lunacy and hence the Act of 1887 did not apply. Not discussed in these cases, however, because both were decided prior to enact- ment of the Judicial Code, was the change in the statutory language between the Act of 1887 and the Judicial Code of 1976. Although both of those statutes used the word "lunatic" in 1887 §5(e) and in Judicial Code §5930, the Act of 1887 consistently used "lunatic" in 1887 §7, the Judicial Code in §5931 substituted "mental incapacity" and used "mental incapacity" again in §5932, then reverted to "lunatic" in §5933(a) but then used "incompetent" in §5933(b). If the legislature in adopting the Judicial Code intended "men- tal incapacity" and "incompetent" to be interchangeable with "lunatic", then the decisions in Yacabonis and in Weiherer might be in error. Court will not entertain petition for finding an already adjudi- cated incompetent to be a lunatic where the petition is filed for sole objective of barring defendant from testifying: Commitment of Formichella, 51 D. & C. 2d 584. Neil W. Yahn, Esquire Attorney I.D. No. 82278 James Smith Dietterick & Connelly, LLP P.O. Box 650 Hershey, PA 17033 (717) 533-3280 Attorneys for Respondent IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION IN RE: ESTATE OF WILMA J. SCHEER, Deceased JAN ANDREW OSTERLUND . GARY CASSELL OSTERLUND No. 21-09-1202 LOYAL FREDERIC OSTERLUND Petitioners EUGENE B. SCHEER Respondent CERTIFICATE OF SERVICE The undersigned hereby certifies that I served a true and correct copy of the foregoing, Motion for Reconsideration, upon the following below-named individual(s) by depositing same in the U.S. Mail, postage pre-paid at Hershey, Dauphin County, Pennsylvania this ~~ day of October, 2010. Steven C. Wilds, Esquire Stephen J. Dzuranin, Esquire Wix, Wenger & Weidner 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 Counsel for Linda and Gail Peter M. Good, Esquire Smigel, Anderson & Sacks, LLP 4431 North Front Street Harrisburg, PA 17110 Counsel for Petitioners