152 A. 840 | Pa. | 1930
William A. Munnell, herein sometimes called the testator, of Volant, Lawrence County, died November 3, 1928, having, on July 21st, of the same year, executed what purported to be his last will. A caveat against its probate having been filed, the matter was certified to the orphans' court and by it to the court of common pleas for jury trial. Testator left an estate of approximately ten thousand dollars and was survived by one son, William B. Munnell and by two daughters, Mrs. Lockhart and Mrs. Aggas, also by four grandchildren, the children of a deceased daughter. In the issue as framed, Mrs. Aggas is the plaintiff and the son and other daughter defendants. The questions of undue influence and testamentary capacity were embraced in the issue. Both questions were submitted to the jury, who found a general *81 verdict for the defendants; from judgment entered thereon the plaintiff brought this appeal.
The judgment cannot be sustained. In May, 1927, testator, then eighty-six years of age, whose wife had been dead some eight years, was in need of care; hence, by agreement of his three children, in which he concurred, Mrs. Aggas and her family went to reside with him. Testator was a veteran of the Civil War and was then drawing a pension of seventy-five dollars a month and all agreed that Mrs. Aggas should have free house rent and the pension to use for support of the family. This arrangement was carried out until testator's death. He had suffered a slight cerebral hemorrhage in March, 1926, another in July, 1927, and a third in November, 1927, but none resulted in any paralysis. He had been a man of superior intelligence, had served as school director and for many years as justice of the peace, and was an elder in the church. In addition, for over forty years he had been secretary of a local insurance company, which did an extensive business. The latter position he voluntarily gave up some two or three years before his death. About the same time he handed his securities, amounting to nearly seven thousand dollars, to his son for safe keeping, which was done by concurrence of all the children. Testator had been remarkably vigorous in mind and body until nearly eighty-five years of age and thereafter he declined in both.
Early in July, 1928, Mrs. Aggas, at testator's request, as she testified, called William McElwee, Esq., an attorney at New Castle, to consult with testator with reference to preparing a will. The attorney called on him and discussed the subject in detail. The latter expressed a desire to favor Mrs. Aggas because of her kind care and attention. While testator said he was not prepared to execute a will that day, he at first expressed the wish to give the other children and grandchildren only nominal bequests, and the balance to Mrs. Aggas. She urged that he give the other children substantial legacies. He *82
finally suggested something like a thousand dollars each for the other two children and one hundred each for the four grandchildren. The attorney suggested that a percentage basis would perhaps better carry out testator's wishes. The attorney testified that at times during this talk testator's mind seemed to falter, and he apparently failed to grasp the percentage idea, and said he desired to think it over. The attorney departed but was called back in a week or ten days and the matter was again discussed. According to the scrivener, testator's mind was clear that day and he said he understood the percentage basis, named his children and grandchildren and gave further directions about the will, but said he was not yet ready to make it and requested the scrivener to come later. This the latter declined to do, but said he would write out the will and mail it to testator so he could execute it or not according to his final conclusion. This was done and later testator had two witnesses called, in whose presence he executed the will. According to the testimony, he soon discovered that the scrivener had made an error in the will which, as written, provided for five grandchildren, when in reality there were but four. This left one per cent of the estate undisposed of. Hence, the will was promptly returned to the scrivener, who redrafted it, giving the one per cent to Mrs. Aggas. As so redrawn, it was returned to the testator, who then had witnesses called and after reading the will asked his daughter for a pen, also the date, which he inserted, signed the will and had it properly witnessed. This was the will in question and, as drawn, gives seventy-six per cent of his net estate to Mrs. Aggas, ten per cent each to the son and other daughter and one per cent to each of his four grandchildren, and bears date of July 21, 1928. No doubt is expressed by the scrivener or either of the witnesses as to Mr. Munnell's testamentary capacity. This is also supported by a number of lay witnesses, probably the most important of whom was William Edenburn, who was and had been *83
for years a codirector with Mr. Munnell of a cemetery association. The former visited the latter shortly after the execution of the will and they had an extended conversation about the cemetery's affairs. He testified in part: "Q. At that time, from your observation and from your conversation, what change, if any, was there in his mental conduct from the times that you had known him in Mercer County? A. Well I couldn't see any change that day at all, he was very clear, he recollected things that happened along our line of business in the Carpenter Cemetery that I had forgotten; he brought them up. . . . . . . Q. From your observation of him as to his conversation and actions generally that day, what was your conclusion as to his mental condition? A. Why I couldn't say anything but what it was good that day, I couldn't ask anything better; he outlined things there to me." The witness states that they discussed among other things the closing of a narrow road through the cemetery. He also testified: "A. Well there was some talk of other things, I don't just remember what all we did talk about. He spoke about his brother that lived out in the west, a brother that I should have known about but I had forgotten. I think the way he happened to do that we got to talking about his brother Thomas who lived in Mercer." Crediting this testimony, which was in no manner impeached, it is quite clear that on that day Mr. Munnell, the testator, was competent to make a will. The proponent, although interested, appeared to testify quite candidly, said her father's mind was clear on the attorney's last visit and also when he executed the will. Dr. Barr, the attending physician, expressed an opinion that testator was competent to make a will; although he had some months before made affidavit, in support of an application for increase of pension, in effect that Mr. Munnell was totally disabled mentally. A man may, however, be mentally so disabled as to have no earning capacity and yet be competent to make a will. Where the draftsman of the will is an attorney *84
and acquainted with the testator and his opinion of capacity is supported by the subscribing witnesses, it makes a case for proponent which requires strong evidence to overcome: Phillip's Est.,
Contestants submitted lay testimony and opinions of lay witnesses indicating lack of testamentary capacity. Some of these opinions were not based on the recital of any sufficient facts to render them of value. The most important testimony on behalf of contestants, however, was probably that of Dr. Lafferty, of Sharon, whose wife was one of Mr. Munnell's granddaughters. The doctor had occasionally visited the testator during and prior to 1928, but never treated him professionally, and expresses the opinion that Mr. Munnell did not "have sufficient mind and memory to know and understand the extent of his estate, and to intelligently dispose of same." There was testimony given by contestants and their witnesses, to the effect that testator's memory was exceedingly defective, that he would ask the same question again and again, that he failed to remember he was stockholder in a local water company, that he was incoherent in his speech, that he would fail to recognize acquaintances and even members of his family, that he became untidy and would spit tobacco juice on the floor, that he would at times expose his person when in his back yard, that he declared he had no property and received only twelve dollars a month pension, and other somewhat similar statements.
Beyond doubt, Mr. Munnell's health had broken and his faculties were greatly impaired. He was badly crippled, especially in his right hip, and walked with difficulty. He also had a distressing bladder trouble, which necessitated frequent visits to the toilet and probably explains the exposure of his person above mentioned, but, so far as appears, he never soiled his clothes. Like most old people, he was fond of discussing matters that *85
occurred years ago and of relating his army experiences, although he continued to read the daily paper. He was of a jovial disposition and some of his expressions were probably not intended seriously; for example, that his son, who was sitting in the room, with whom he had just been talking, had not been to see him in a year. Also his asking who Olive Aggas was, on reading her name as principal beneficiary in his will. This may have been because he uniformly called her "Dolly." Testator gave as a reason for not more liberally remembering his other children, that they had neglected him. While there is nothing to indicate any intentional neglect, they only visited him occasionally and it was natural he should, to some extent at least, favor the daughter who was devoting her life in making his last years comfortable. She gave him the constant care he required and did for him more than his housekeeper had been able to do. Taking the testimony as a whole, it will not, in view of our decisions, support a verdict against the will on the ground of lack of testamentary capacity. It is not a question whether some of the evidence, standing alone, would do so, but whether it would when considered as a whole: Leisey's Est.,
It requires less capacity to make a will than to do ordinary business: Snyder's Est., supra; Guar. T. S.D. Co., Guar., v. Heidenreich, supra; Kustus v. Hager et al., supra; Guarantee Tr. S.D. Co. v. Waller,
There was in the instant case no such proof of general insanity as to cast upon proponent the burden of showing a lucid interval when the will was executed. See Harden v. Hays,
There is nothing in the record to sustain the contention of undue influence. While Mrs. Aggas lived with testator in his home, it does not appear that she endeavored to influence him in the disposition of his property. There was no wrong in the fact that she called in the attorney who drew the will. Being the woman about the house and testator's daughter, and he somewhat deaf and crippled, it was natural that she should do so: White's Est.,
The proof taken as a whole does not support the finding of the jury on either or both questions stated in the issue; hence, judgment is hereby entered for the plaintiff, non obstante veredicto, and the record is ordered remitted that the issue may be set aside and the will probated. The costs to be paid by the appellees.
