Estate of Grossman

• Decision Date: 01 October 1979
• Parties: ESTATE of Herman GROSSMAN, Deceased. Appeals of Rhoda KESSELMAN, Max Grossman and Thelma Selet.
• Court: Pennsylvania Supreme Court

Page 726

406 A.2d 726

486 Pa. 460

ESTATE of Herman GROSSMAN, Deceased.

Appeals of Rhoda KESSELMAN, Max Grossman and Thelma Selet.

Supreme Court of Pennsylvania.

Argued Jan. 19, 1979.

Decided Oct. 1, 1979.

[486 Pa. 462] Jacob S. Richman, Philadelphia, for appellants.

Samuel S. Blank, Upper Darby, Delaware County, for appellee.

Before EAGEN, C. J., and O'BRIEN, ROBERTS, NIX, MANDERINO and LARSEN, JJ.

OPINION OF THE COURT

ROBERTS, Justice.

Herman Grossman died on November 9, 1973, survived by six children, Joseph Grossman, Max Grossman, Doris Roseman, Burton Grossman, Thelma Selet, and Rhoda Kesselman. Decedent's will, dated October 19, 1972, directed payment of all testator's debts, funeral expenses, and all inheritance taxes. The will provided that of the residue of decedent's estate, his son Joseph was to receive fifty percent, his daughter Doris was to receive fifteen percent, his grandchildren Margo and Duffy Grossman were each to receive twelve and a half percent, and his brother Max Grossman was to receive ten percent. Decedent's 1972 will was admitted to probate and, on October 22, 1974, letters testamentary were issued to the executor of the estate, his son, Joseph Grossman.

Decedent's disinherited children (Max, Rhoda, Thelma and Burton) objected to the first and final accounting of the estate. Rhoda claimed a one-half share of her father's net estate plus executor's commission. ¹ In the alternative, Rhoda claimed she was entitled to recover from the estate damages in quantum meruit for her expenditures and services with respect to certain of decedent's property. At the hearing before the auditing judge, Rhoda sought to establish her entitlement to a portion of the estate by proving that she and her father had entered into an oral agreement by which he agreed to execute a will leaving one-half of his estate to Rhoda and appointing her executrix, and that her father breached the agreement. ² The auditing judge ruled that the testimony of both Rhoda and her husband, Stanley Kesselman, was incompetent under the Pennsylvania Dead Man's Statute, Act of May 23, 1887, P.L. 158, § 5(e), 28 P.S. § 322 (1958). ³ The court, therefore, refused to permit Rhoda or Stanley to testify in support of the claim, and rejected Rhoda's claim because the evidence of the agreement was not clear and convincing. By decree nisi, the auditing judge dismissed the claims of all the contestants and confirmed the account. ⁴

Contestants excepted to the decree nisi arguing inter alia that the Dead Man's Statute was improperly applied by the auditing judge to bar the testimony of claimant's husband, Stanley Kesselman. The orphans' court en banc dismissed appellants' exceptions and confirmed the decree nisi. On appeal to this Court appellants again contend that the orphans' court erred when it ruled that Stanley Kesselman's testimony was incompetent solely because he was the spouse of a party whose interest was adverse to that of a decedent. ⁵ We agree that the orphans' court erred and hold that the testimony of Stanley Kesselman may not be excluded under the Dead Man's Statute solely on the basis of his marital status. ⁶

I. The Language of the Dead Man's Statute Does Not Require Exclusion of the Testimony of the Spouse of an Adverse Interested Party

At common law the testimony of parties to a lawsuit and any other person who had a direct pecuniary or proprietary interest in its outcome was considered incompetent. See generally, Wigmore, Evidence § 575. In England, the disqualification of the testimony of interested witnesses was removed by Parliament in 1834. Lord Denman's Act, 6 & 7 Victoria, ch. 85. And, in 1851, the testimony of parties to the lawsuit was rendered competent by Lord Brougham's Act, 14 & 15 Victoria, ch. 99. The reform movement begun in England quickly spread to the United States and the Pennsylvania Legislature removed the broad common law testimonial disqualification of interested persons by the Act of April 15, 1869, P.L. 30, § 1. Yet, like other American jurisdictions, the Pennsylvania Legislature carved an exception out of the broad enabling legislation. That exception is commonly known as the Dead Man's Statute. ⁷

In its most recent form, Pennsylvania's Dead Man's Statute provides:

"Except as otherwise provided in this subchapter, in any civil action or proceeding, where any party to a thing or contract in action is dead, or has been adjudged a lunatic 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, 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, shall be a competent witness to any matter occurring before the death of said party or the adjudication of his lunacy, unless the action or proceeding is by or against the surviving 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; or, unless the action is a possessory action against several defendants, 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 therefor as the court in its discretion may direct, in which case such disclaiming defendant shall be a fully competent witness; or, 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.A. § 5930.

On its face, the Pennsylvania Dead Man's Statute excludes only the testimony of interested parties to a transaction with a deceased. The statutory language does not exclude the testimony of the spouse of an incompetent party on the basis of martial status alone and does not refer to spouses of disqualified parties at all. Nonetheless, only two years after passage of the Act of 1887, in Bitner v. Boone, 128 Pa. 567, 18 A. 404 (1889), the statute was construed to bar the testimony of the spouse of a disqualified party. A decade before the turn of this century, the Bitner court reasoned:

"If the husband must be excluded on account of interest, so also must his wife be excluded on account of her unity of interest with him. Although each may not be said to have any direct interest during coverture, she has, nevertheless, an indirect interest derivative from her husband, and so presently joined with his, as at all periods in the history of the law placed her in the attitude of an interested person, in cases where her husband's rights came into controversy. So closely connected in interest are they, that in equity, in controversies affecting the interests of either, the testimony of both is considered as the testimony of one person only: Sower v. Weaver, 78 Pa. 443 ((1875)). If the legislature had intended to change the law in this respect, against the theory of both the common and the statute law and the habits of centuries, it is reasonable to suppose that the change would not have rested upon any mere implication, but would have been expressed in plain words."

Id. at 571, 18 A. at 405. So too, is it not just as reasonable to conclude that if the Legislature intended to exclude spouses, the disqualification "would not have rested upon a mere implication, but would have been expressed in plain words?" Id. See 1 Pa.C.S.A. § 1921(b).

In Weaver v. Welsh, 325 Pa. 571, 191 A. 3 (1937), this Court in the course of applying the rule of Bitner v. Boone, again stated that the rule disqualifying the testimony of the spouse of an interested witness found its theoretical roots in the fictional unity of husband and wife. That, under the Bitner rule, any inquiry whether the spouse is actually an interested person is irrelevant is further indicated by the rule's corollaries that "(t)he death of the one having such interest does not render the other competent nor is a release by one effective for that purpose if the other still retains his or her interest. A release by both is necessary." Henry, Pennsylvania Evidence, § 768. ⁸

II. The Rationale and Policy on which the Bitner Rule is Based Must be Re-examined

Bitner has been repeatedly followed by the courts of this Commonwealth essentially without challenge, analysis or question. See, e. g., In re Nakoneczny's Estate, 456 Pa. 320, 319 A.2d 893 (1974); Moore Estate, 439 Pa. 578, 266 A.2d 641 (1970); Weaver v. Welsh, 325 Pa. 571, 191 A. 3 (1937); Uhl v. Mostoller, 298 Pa. 124, 148 A. 61 (1929); Sheaffer v. Brown, 281 Pa. 114, 126 A. 239 (1924); Reap v. Dougher, 261 Pa. 23, 103 A. 1014 (1918); Burke v. Burke, 240 Pa. 379, 87 A. 960 (1913); Myers v. Litts, 195 Pa. 595, 46 A. 131 (1900); Appeal of Daisz, 128 Pa. 572, 18 A. 414 (1889). But a survey of the law of other American jurisdictions reveals that Pennsylvania is within a small minority of jurisdictions. It is clear that re-examination of the rule is appropriate. ⁹

In the past, this Court has not been hesitant to reconsider precedent when the principles it represents are out of accord with conditions of modern life. See, e. g., Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973) (governmental immunity abandoned); Commonwealth v. McCusker, 448 Pa. 382, 292 A.2d 286 (1972) (rejected rule that psychiatric evidence is inadmissible in murder prosecution for purposes...