O'Halloran v. Stauffer

476 A.2d 354, 504 Pa. 626, 1984 Pa. LEXIS 260

• Court: Supreme Court of Pennsylvania
• Decided: May 25, 1984
• Docket: No. 76 W.D. Appeal Docket, 1983
• Status: Published

Opinions

OPINION

ZAPPALA, Justice.

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.¹ 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.² 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,

... the law imposes a heavy burden on one who grounds his or her claim on an allegation of common law marriage. This is especially so where one of the parties is dead and the claim, so grounded, is to share in the distribution of the estate. [Citations omitted.] As this Court stated in Stevenson’s Estate, 272 Pa. 291, 301, 116 A. 162, 165 (1922):

‘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 policies that we must examine the desirability of allowing Appellee to be excepted from the Act’s proscriptions.

Appellee argues, and both courts below held, that she was competent to testify based upon the devisavit vel non exception to the Dead Man’s Act. The purpose of this exception is to allow testimony as to the intent of a testator to be elicited from those who would otherwise be incompetent to testify under the Act. In Dalbey’s Estate, 326 Pa. , 192 A. 129 (1937), we stated that the exception arises out of the usual lack of qualified testimony in litigation involving a will, the logic being that the usual beneficiaries or legatees who would be incompetent under the Act are usually the only ones who have knowledge of the circumstances surrounding the execution of the testator’s will and the contents thereof. Id. In these instances we balance the need for this testimony against its possible self-serving facet and allow the testimony to be heard, leaving the factfinder to determine credibility and weight.

McClain, the plurality opinion relied on by both courts below, was an attempt at overruling prior case law holding that the devisavit vel non exception was operable only when the interested parties were all of the same class, either all taking by devise or all taking by descent. McClain held that the exception was operable even where some of the parties involved were claiming by devise and some by descent. Based upon this, the lower court reasoned that Appellee, claiming by descent, could testify even though the other beneficiary was taking by devise. This arguably would be a reasonable application of McClain were it not for the fact that Appellee must first establish her status as a descendant before she can qualify to testify under the exception. In this respect it can be said that Appellee is sui generis from those situations covered under the exception, the reason being that in the instant case the testimony of the Appellee does not go directly to questions surrounding the will or the decedent’s intent thereof, but rather is an attempt to establish the common law marriage. It is therefore apparent that the purpose behind which we except this class and allow them to testify is not present here. For, upon closer examination, what the Appellee must do before she comes within the purview of the exception is to overcome the hurdle of establishing her status. Once she has done that, she would fall within the exception and be competent to testify. Appellee’s attempt at overcoming that hurdle, however, must be accomplished without resort to any exception to the Act, since at that point she is not yet within the exception. Additionally, we have held that a common law marriage is a civil contract, McGrath’s Estate, 319 Pa. 309, 179 A. 599 (1935), and therefore what the Appellee would really be testifying to is a contractual relationship between herself and the decedent. This is clearly proscribed under the Dead Man’s Act, and we have so held, albeit without setting forth the rationale at length. Wagner Estate, 398 Pa. 531, 536, 538, 159 A.2d 495, 498 (I960).³

OUr decision today does not preclude Appellee from establishing her status as common law wife, but merely restricts the evidence she may introduce. For, consistent with proof of a civil contract, the contract does not require any specific form of words; all that is essential is proof of an agreement to enter into the legal relationship of marriage at the present time. Gavula, supra, 490 Pa. at 540, 417 A.2d at 171. Where there is no such proof available, the law permits a finding of marriage based upon reputation and cohabitation when established by satisfactory proof. Wagner’s Estate, 368 Pa. 531, 159 A.2d 495 (1960); Nikitka’s Estate, 346 Pa. 63, 29 A.2d 521 (1943). In Estate of Garges, 474 Pa. 237, 378 A.2d 307 (1977), we held that the cohabitation of a man and woman, both of whom are capable of contracting marriage coupled with a reputation as husband and wife in their community, together raise a presumption that the parties have contracted marriage.

In the instant case, the record indicates that the Appellee at the time of trial offered evidence of cohabitation and reputation in the community, and thus our decision today does not extinguish her sole means of proving her status as decedent’s spouse.

Accordingly, we remand this case to the lower court for a new trial, consistent with this opinion, on the issue of the existence of a common law marriage.

Reversed and remanded. 315 Pa.Super. 591, 462 A.2d 750.

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.

1 . Briefly stated, the Act renders incompetent testimony in a civil action by a witness to occurrences prior to the death of a party whose interest is adverse to that of the witness “unless the issue or 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.” 42 Pa.C.S. § 5930.

2 . It is unclear from the record as to what became of the challenge to the validity of the will itself. It appears that the Appellee had waived any challenge to the same and chose to proceed on the basis of her election to take under the will, therefore requiring her proof as a common law wife.

3 . We note for informational purposes that a subsequent change to § 2209 of the Decedents, Estates and Fiduciaries Code, as amended, Act of February 18, 1982, P.L. 45 No. 26 § 1, will prospectively render this issue moot since § 2209 now provides that "... a person who is or claims to be the surviving spouse should be a competent witness as to all matters pertinent to his rights under this chapter other than the creation of his status as surviving spouse." (Emphasis added).