England Estate

55 Pa. D. & C.2d 420, 1971 Pa. Dist. & Cnty. Dec. LEXIS 207
CourtPennsylvania Orphans' Court, Dauphin County
DecidedJune 10, 1971
Docketno. 1085 of 1966
StatusPublished

This text of 55 Pa. D. & C.2d 420 (England Estate) is published on Counsel Stack Legal Research, covering Pennsylvania Orphans' Court, Dauphin County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
England Estate, 55 Pa. D. & C.2d 420, 1971 Pa. Dist. & Cnty. Dec. LEXIS 207 (Pa. Super. Ct. 1971).

Opinion

SWOPE, P. J.,

Exceptions have been filed by the Kinkora Pythian Home Association, Inc., to the first and partial account of Dorothy Leidich, Administratrix of the Estate of Beulah England, deceased, who died, intestate, November 15, 1964, a resident of the City of Harrisburg, Dauphin County, Pa., survived by C. Raymond England, husband, Dorothy M. Leidich, daughter, and Alexander Holmes, son. C. Raymond England, having survived his wife, himself died in May 1965, a resident of Kinkora Pythian Home, Covallen, Perry County, Pa.

The instant estate has been raised to dispose of an inheritance received by the late Beulah England from the Estate of Flora Taylor, a sister, who died testate, November 10, 1964, a resident of the State of Texas. The first and partial account excepted to herein proposes a division of that inheritance equally between Alexander Holmes and Dorothy Leidich as per an as[422]*422signment of the dower interest of C. Raymond England, allegedly made by him during his lifetime, on November 19, 1964. The exceptant, though admitting the execution and delivery of the above assignment, contends that the date affixed thereto is false and fraudulent and should, in fact, have been January 31, 1965, and that it must be taken, therefore, as being superseded by a written assignment of that same interest made by C. Raymond England to the Kinkora Pythian Home, dated December 23, 1964. We are now required to determine the priorities of the above assignments and their relationship to the claim of each of the parties as distributees of the assets of the subject estate.

At the hearing, considerable testimony was allowed over objection, the admissibility of which must now be determined. To be considered initially is the testimony of John H. Hankie, the secretary of the board of the exceptant association, and Daniel Webster Lehman, Grand Chancellor of the Knights of Pythias of Pennsylvania, both of whom testified as to circumstances surrounding an alleged application of the deceased, C. Raymond England, for admittance to the Kinkora Pythian Home, and an assignment by him of his assets to the home as a condition of his acceptance for residence purposes. The testimony was objected to by respondents on the grounds that its admission would constitute a violation of the Dead Man’s Act of May 23, 1887, P. L. 158, 28 PS §322, rendering incompetent, as to any matter occurring before the death of decedent, testimony of a witness where: (1) the deceased had an actual interest or right in the matter at issue, i.e., an interest in the immediate result of the suit; (2) the interest of the witness, not simply the testimony, is adverse to the deceased; and (3) a right of the deceased has passed to a party of record who repre[423]*423sents the deceased’s interest: Hendrickson Estate, 388 Pa. 39, 45, 130 A. 2d 143 (1957). A party rendered incompetent under the above rule may not testify as to any declaration, admission, conversation or act of the deceased or of himself in the presence of the deceased before the death of decedent, not even to a conversation between the parties to the suit with reference to decedent’s rights: 5 Standard Pa. Practice (revised) §123, at 286.

In the instant case, both parties claim the same asset under different assignments from the deceased. The fact that the Kinkora Pythian Home Association is a surviving party to one of the alleged assignments is insufficient, of itself, to disqualify its representatives as witnesses under the “Dead Man’s Act.” “It must further appear that the rights of the deceased have passed to the other party on the record who represents his interest: Wolfe v. Scott, 275 Pa. 343, 346, 119 A. 468, 469 (1923). See also 2 Henry, Pennsylvania Evidence, §774, p. 219 (4th Ed. 1953), and cases cited therein”: Grasso v. John Hancock Mutual Life Insurance Company, 206 Pa. Superior Ct. 562, 565, 214 A. 2d 261 (1965).

Under Pennsylvania law assignees have long been considered persons to whom the deceased assignor of a thing or contract has passed, by his own action or by law, his right therein: Hess v. Gourley, 89 Pa. 195 (1879); Porter v. The National Bank of Boyertown, 32 Berks Co. 229 (1939). In the present case, however, both parties assert their status as assignees, and claim to be bona fide representatives of the deceased, seeking to exclude the other with reference to its alleged assignment, as adverse to the interest of the deceased. The Pennsylvania Supreme Court has summarized the law with regard to such a dilemma in Ford Estate, 431 Pa. 185 (1968), stating at page 187:

[424]*424“As framed by the trial court the issue presented can be thus stated: ‘A problem has always existed in the application of this statute [Dead Man’s Act] to controversies between an estate and one who claims property originally owned by the decedent but allegedly the subject of an inter vivos transfer to such person. The difficulty stems from the fact that there are, in such a situation, two parties with a possible interest in the property, each of whom might have an interest adverse to that of the decedent, depending on whether the transfer is valid or not, which is, however, the ultimate issue. This Gordian knot is cut by determining whether the gift or transfer is prima facie valid; with this determined, it becomes possible to decide to whom the decedent’s interest has passed, and the other party to the controversy is rendered incompetent.’ ”

Respondents, at the outset of the present proceedings, introduced a written assignment signed by decedent and bearing the date November 19, 1964. The assignment, so introduced, displaying no discrepancy or ambiguity on its face, and antedating the other assignment on the record, established a prima facie case, and, in keeping with the above cited decisions, the interest of the deceased must be said to have passed to respondents herein. Consequently, the testimony of exceptant, as a surviving party to an alleged transaction with the deceased, C. Raymond England, having an adverse interest to that of decedent, is inadmissible in that it refers to matters occurring before the death of decedent, and, accordingly, will not be considered in our determination of this case.

Counsel for respondents objected also to testimony by G. Thomas Miller, Esq., counsel for C. Raymond England, as to alleged conversations with his client which was offered by exceptant to show that the assignment to respondents “was executed subsequent [425]*425to the date that appears in the document.” In other words, the above testimony was offered in proof of the matter asserted by exceptant. Though the witness is not an interested party within the meaning of the Act of May 23, 1887, the testimony of Mr. Miller is rendered inadmissible as violative of the hearsay rule.

Hearsay evidence is defined as “an extrajudicial utterance offered to prove the truth of the matter asserted” and is not rendered competent merely by the fact that the declarant is dead: Meacham v. Pennsylvania Railroad Co., 38 Dauph. Rep. 248 (1933). Furthermore, when a witness offers evidence of assertions made by a party to an action, before suit is brought, and which are self-serving, such testimony is clearly inadmissible as hearsay. In Emmons v. McCreery, 307 Pa. 62 (1932), at pages 66-7, the following language occurs in this regard:

“The rule that self-serving declarations, made by a party to an action before suit is brought, whether verbal or written, are inadmissible when offered on behalf of the party who made them, is established by an unbroken line of decisions.

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Related

Hendrickson Estate
130 A.2d 143 (Supreme Court of Pennsylvania, 1957)
Ford Estate
245 A.2d 443 (Supreme Court of Pennsylvania, 1968)
Emmons v. McCreery
160 A. 722 (Supreme Court of Pennsylvania, 1932)
Kaufmann's Estate
127 A. 133 (Supreme Court of Pennsylvania, 1924)
Brunswick Gas Light Co. v. United Gas, Fuel & Light Co.
34 A. 416 (Supreme Judicial Court of Maine, 1896)
Harris v. Tyson
24 Pa. 347 (Supreme Court of Pennsylvania, 1855)
Taylor v. Gould
57 Pa. 152 (Supreme Court of Pennsylvania, 1868)
Hess v. Gourley
89 Pa. 195 (Supreme Court of Pennsylvania, 1879)
Dempsey v. Dobson
34 A. 459 (Supreme Court of Pennsylvania, 1896)
Wolfe v. Scott
119 A. 468 (Supreme Court of Pennsylvania, 1923)
Rudisill v. Cordes
5 A.2d 217 (Supreme Court of Pennsylvania, 1939)
Grasso v. John Hancock Mutual Life Insurance
214 A.2d 261 (Superior Court of Pennsylvania, 1965)
Crousillat v. Ball
3 Yeates 375 (Supreme Court of Pennsylvania, 1802)

Cite This Page — Counsel Stack

Bluebook (online)
55 Pa. D. & C.2d 420, 1971 Pa. Dist. & Cnty. Dec. LEXIS 207, Counsel Stack Legal Research, https://law.counselstack.com/opinion/england-estate-paorphctdauphi-1971.