Summary
reversing grant of preliminary objections where parties' intent was unclear because pertinent document contained "numerous misspellings, incomplete sentences, lack of punctuation, and generally horrendous grammar."
Summary of this case from Meeco, Inc. v. Clean Growth Fund III, LPOpinion
January 16, 1964.
March 17, 1964.
Practice — Pleading — Affirmative defenses — Lack of consideration — Preliminary objections — Pa. R. C. P. 1030.
1. Where the pleader relies for his cause of action upon a written instrument upon the face of which no consideration appears or the existence of consideration appears doubtful the question of lack of consideration may be raised by preliminary objections, particularly where the written instrument is the keystone of the cause of action. [516]
Contracts — Terms — Construction — Unskilled draftsman — Ambiguity.
2. Where there is doubt and ambiguity as to the actual intent of the parties to a written instrument, the court should hear evidence of the attendant circumstances at the time of execution in order to determine what was intended. [516]
Practice — Summary judgment — Clear case.
3. A summary judgment or decree will not be granted unless a case is clear; if the case is not clear the parties must have an opportunity to develop the facts at trial. [517]
Argued January 16, 1964. Before BELL, C. J., MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
Appeal, No. 62, Jan. T., 1964, from decree of Orphans' Court of Lebanon County, Oct. T., 1959, No. 6, in re estate of Isaac Plasterer, deceased. Decree vacated.
Petition to vacate election of widow to take against the will of deceased husband.
Widow's preliminary objections sustained and petition dismissed, opinion by GATES, P. J. Petitioners appealed.
Charles V. Henry, III, for appellants.
L. E. Meyer, with him Meyer, Brubaker Whitman, for appellee.
Isaac Plasterer (decedent), died, testate, on July 22, 1959. Under the provisions of his will — executed December 12, 1958 — decedent, after bequeathing $300 to his widow, Stella M. Plasterer, gave the residue of his estate to his two daughters by a prior marriage, Sadie M. and Mabel H. Plasterer (appellants). This will was probated and letters testamentary issued to appellants.
On October 17, 1959, the widow filed an election to take against the will. Over three years later, appellants petitioned the Orphans' Court of Lebanon County for a rule to show cause why the widow's election to take against the will should not be vacated on the ground that the widow, by a written instrument dated August 5, 1958, has renounced her rights in decedent's estate. The widow filed preliminary objections which alleged that the written instrument of August 5, 1958 failed to show any promise by either the widow or the decedent supported by consideration. The court sustained these preliminary objections and dismissed appellants' petition to vacate the election. From that decree this appeal was taken.
The handwritten instrument upon which appellants rely to defeat the widow's rights provides:
The identity of the scrivener of this instrument does not appear of record.
" Aug. 5-58
To who It is concerned My Heirs or Mr. Plasterer I do not claim and any of Plasterers estat and. Neither Shall he Claim any of mine Only the Claim of a $5000.00 Ins. Policy Monthly Benefits the New York Mutual So this will close this matter. the Income
Signed Isaac Plasterer Mrs Stella M. Plasterer Mrs Verna E. Houser"
On the posture in which this issue is presented it is undisputed that both decedent and his wife did execute this written instrument.
Appellants have four contentions: (1) that, on preliminary objections, lack of consideration cannot be raised; (2) that the words in the instrument "I do not claim and any of Plasterers estat and Neither Shall be Claim any of mine", if consented to by both decedent and his wife, were binding promises establishing a mutuality of assent; (3) that the execution of the instrument by both the wife and the decedent evidenced their assent to the mutual promises in the writing; (4) if the words of the instrument are ambiguous and unclear, then the court cannot determine the intent of the parties without hearing evidence as to the attendant circumstances.
Assuming, arguendo, that lack of consideration is an affirmative defense under Pa. R. C. P. 1030, yet where the pleader relies for his cause of action upon a written instrument upon the face of which no consideration appears or the existence of consideration appears doubtful it would seem logical to raise this question by preliminary objections particularly where the written instrument is the keystone of the cause of action. In the case at bar, since appellants rely exclusively upon this written instrument to set aside the widow's election, the existence or non-existence of consideration on the face of the writing was properly raised by preliminary objections.
Lack of consideration is not specifically included as an affirmative defense under this Rule. However, under the Rule as amended, affirmative defenses are not limited to those specifically set forth.
The instrument upon which appellants rely contains, as the appellants concede, "numerous misspellings, incomplete sentences, lack of punctuation, and generally horrendous grammar". Even the most cursory examination of this writing indicates that doubt and ambiguity arise as to the actual intent of the parties thereto. Under such circumstances, we are compelled to resort to the circumstances with which those who executed this instrument were surrounded at the time of its execution evidence of which could enlighten us as to that which the parties actually intended. See: Mowry v. McWherter, 365 Pa. 232, 74 A.2d 154; Kennedy v. Erkman, 389 Pa. 651, 133 A.2d 550.
By way of illustration, the writing refers to a $5000 insurance policy concerning the terms of which the written instrument tells us nothing and yet it may well be that an irrevocable recognition by decedent of the right of the widow to this policy might furnish the consideration to validate the writing. Further, the writing refers to "the Income" without any reference to that from which the income may arise.
The matter was determined by the court below on the pleadings which, in effect, constituted a construction of the terms of the written instrument from the language employed. Where the court erred was in considering that the language of the instrument was clear and unambiguous. We consider the language both unclear and ambiguous and believe that only evidence of the attendant circumstances can enable the court to determine just what the parties intended by the writing. Most apposite to the instant situation is our language in Mowry, supra (243): "The plaintiff's bill of complaint should not have been dismissed on preliminary objections. It is clear that a contract when ambiguous is to be interpreted in the light of the surrounding circumstances. A disposition of the matter without permitting full development of the circumstances is premature. The rule is that a summary judgment or decree will not be granted unless a case is clear; if the case is not clear the parties must have an opportunity to develop the facts at trial."
Decree vacated and the matter remanded to the court below for the purpose of taking testimony concerning the circumstances which existed at the time the writing of August 5, 1958 was executed.