Emernecker's Estate, Appeal, No. 104

Appeal, No. 104 | Pa. | May 20, 1907

Per Curiam,

This case affords an illustration that may almost be called pathetic, of the persistency of popular error. The notion that to disinherit the heir he must be “ cut off with a shilling ” (for the probable origin of which see Newlin’s Estate, 209 Pa. 456" court="Pa." date_filed="1904-06-15" href="https://app.midpage.ai/document/newlins-estate-6247724?utm_source=webapp" opinion_id="6247724">209 Pa. 456), started more than 300 years ago, never was the law either in England or Pennsylvania, and yet survives with such potency as to lead to results apparently as unjust as they were unintended.

The undisputed facts of this case do not admit of any question as to the legal result, however much we may be impressed that the testatrix’s act was induced by an erroneous belief as to the law. She intentionally destroyed the will, and declared she had done so with intent to mhke another. She knew what she was doing and the effect of it, and she did it animo revocandi, with intent to produce that effect. Her reasons were not matter of inquiry for the court. "Whether, if she had felt sure that the will already executed would accomplish what she wanted to do she would have changed it, we may speculate but we do not know. As was well said by the learned judge below, “ She was aware that, until this new will was executed, she was without any will at all, and the time of execution was left indefinite. Her friend ivas to call the “ first fine day ” to go with her to have it drawn. This was merely the expression of an unwritten intention to do something in the future, and no matter how fully her mind was then made up, there might be a change of intention at any time before it was permanently expressed in writing. And whether the intended provision for her children would be substantial or merely nominal cannot be known. A will giving even a dollar to each child would be a different will from the one destroyed, and the dollar so given could be demanded by the legatees.”

It seems to be a hard case, but there is no remedy without making the bad law which such cases are said to invite.

Decree affirmed.