278 Pa. 227 | Pa. | 1923
Opinion by
William Buechley, Sr., of Pottsville, died in 1919, survived by three children, viz: Mrs. Laura B. Kenney, William Buechley, Jr., and Fred B. Buechley. The son, William, had long been the partner of his father in the lumber business, and produced what purported to be the latter’s holographic will made in January, 1910, wherein one thousand dollars was given to the son Fred, bank stock worth f9,750 to the daughter and, as appellee construes the instrument, the residue of the estate, valued at over one hundred thousand dollars, to him (William), who was made executor. From the probate of the will, the daughter and son Fred (contestants) appealed to the orphans’ court where an answer was filed and testimony taken. The contest was based mainly upon alleged undue influence and lack of testamentary capacity. That court filed a comprehensive opinion and entered a decree
The execution of the will and the testamentary capacity of William Buechley, Sr., were established beyond controversy; but the serious contention of contestants is, that the son, William, stood in a confidential relation to his father, which the evidence justifies, and that, being the principal legatee, a presumption of undue influence arises which he must rebut. Such presumption, however, arises only where there is proof of extreme infirmity or mental weakness. As stated by Mr. Justice Frazer in Gongaware v. Donehoo, 255 Pa. 502, 508: “While it is true that, where a testator leaves a substantial part of his estate to one occupying a confidential relation, the burden is on the latter to show that no improper influence controlled the making of the will (Adam’s Est., 220 Pa. 531); yet this presumption arises only where there has been proof of extreme infirmity or mental weakness,” citing in support thereof the leading case of Phillips’s Est., 244 Pa. 35, 44, 46. In the case of Miller’s Est., 179 Pa. 649, and 187 Pa. 572, relied upon by appellants, the facts were different; in that ease there was evidence from which the jury might find that the testator’s mental faculties were greatly impaired. This distinction is pointed out in Friend’s Est., 198 Pa. 366. It therefore becomes important to determine what the evidence is as to testator’s mental and physical health when the will was made. He was then sixty-five years of age, actively engaged in his business and also as director and auditor of a large banking institution, and continued so until he became paralyzed five years later. That his mind was good is established by overwhelming evidence, including that of the family physician, of his associates at the bank, in his office and elsewhere, as well as by the witnesses to the will. No one testifies to the contrary and the evidence for contestants amounts only to some slight circumstances entirely insufficient to create any doubt as to the mental ability of the testator. Among such cir
As there is nothing in the evidence to support a finding of mental or physical weakness when he executed the will, no presumption of undue influence arises, and the burden is upon contestants to prove it; to do so, it must appear that such influence controlled the testator’s mind at the time and in the act of making his will: Goss’s Est., 274 Pa. 278. Here again the evidence fails, for proponent was not present when the will was written or executed nor does it appear that he influenced his father with reference thereto. The only evidence that might tend to show an attempt to do so is testator’s alleged declaration,
The assignment of error is overruled and the decree is affirmed at the cost of appellants.