Estate of Diehl, Appeal, No. 33

Appeal, No. 33 | Pa. Super. Ct. | Jul 28, 1899

Lead Opinion

Opinion by

Rice, P. J.,

The paper admitted to probate as the will of Mary Diehl, is in these words:

“ Gbeencastle, January 1st, 1890.

“I have given (not bequeathed) Six Hundred Dollars or more, if necessary, to put a good iron fence around the graveyard near the Lutheran Church in this place. I refer to the graveyard where my parents and sisters and brothers are buried. I wish the fence to be put up just as soon as the money can be collected for to have it put there. This is my wish.

“ Maby Diehl.

“ Witness:

“ Sabah Shull.”

Was this writing intended to be a disposition of property to take effect after death, or was it, as the appellant contends, a mere declaration or acknowledgment of a previous gift?

This is the only question raised on this appeal. In determining it, we are to look not only at the language of the inartificially drawn paper, but also at the circumstances of its execution and preservation. “ In cases such as this,” to adopt the language of Justice Dean in a recent case, “precedents rarely afford much aid. We start with the settled principle controlling the adjudication in all of them, namely, from the language of the paper itself, and the circumstances surrounding its execution and preservation, did the author of it intend the writing to be a disposition of his or her property to take effect after death? The absence of sameness of expression and the wide variations in facts in nearly all cases compel a conclusion from the language and circumstances of the particular case: ” Gaston’s Estate, 188 Pa. 374" court="Pa." date_filed="1898-11-07" href="https://app.midpage.ai/document/estate-of-gaston-6245004?utm_source=webapp" opinion_id="6245004">188 Pa. 374. Looking first at the language of the paper, we notice that although the decedent used the past tense, the immediate context shows that her directions to make the gift effectual were to be carried out in the future. The amount of money that was to be devoted to the use named was uncertain. It was “ six hundred dollars or more, if necessary,” and was to be collected. Transposing the words, but not changing the thought, her intention might be expressed thus : “ It is my wish that six hundred dollars, or more if necessary, be collected and used to put a good iron fence around the graveyard,” etc. If she had already made a gift, a direction that the money be collected was unnecessary and futile. That she did make it, taken in connection with the uncertainty of the amount, clearly implies that she had not parted with the money, and goes very far to show that she had not parted with her dominion over the property from which it was to be collected. In the absence of other evidence, it repels the conclusion that, in the use of the words “have given,” she meant that she had previously made an irrevocable disposition of her property by gift. Read with the context, these words may fairly be construed to mean that she had previously decided to devote so much of her estate as might be necessary, to the purpose named, and possibly had declared this intention to those having control of the graveyard, and now put her intention in writing. Or they may have been used in the sense in which they would be read in the future, namely, when the directions of the paper would go into effect. The form of the instrument is immaterial if its substance is testamentary, and that it speaks in the past tense and not in the present, is not conclusive: Black v. Jobling, L. R. 1 Prob. & Div. 685, cited with approval in Fouché’s Estate, 147 Pa. 395" court="Pa." date_filed="1892-02-08" href="https://app.midpage.ai/document/fouchés-estate-6240592?utm_source=webapp" opinion_id="6240592">147 Pa. 395; Goods of W. Coles, L. R. 2 Prob. & Div. 362. In the last cited case, the dispositive words were, “ I have given all that I have to Bertha Chamberlain and her two sons,” etc. The court said: “ Although this paper contains the word given instead of give, the court cannot hesitate to say that the testator meant that the property should pass on his death; he could not mean to make over all his property to the persons mentioned at once. It is, I think, obvious that there is greater probability that the testator intended the parties to take on his death, than that he should denude himself of everything in his lifetime. This last supposition is most improbable.”

If the paper had been drawn by a lawyer, the parenthetical expression, “ not bequeathed,” would tend to repel the conclusion that the disposition of the property was not to take effect until after death. But drawn as it was by the decedent herself, and being wholly inartificial, no conclusive effect can be given to the words. It seems extremely improbable, if she were speaking of a past executed gift, and understood the meaning of the term “ bequeathed,” that she would say that it was not a bequest. It is moré likely that she was speaking of the disposition she was then making, and whilst the expression is not to be disregarded in arriving at her intention, yet, if looking at the instrument as a whole, and the circumstances of its execution and preservation, she intended the disposition to take effect after death, her declaration that it was not a bequest would not prevent the admission of the paper to probate. “It is sufficient that the instrument, however irregular in form or inartificial in expression, discloses the intention of the maker respecting the posthumous destination of her property, and if this appears to be the nature of its contents, any contrary title or designation which lie may have given it will be disregarded: ” 1 Jarman on Wills, 83; Kisecker’s Estate, 190 Pa. 476" court="Pa." date_filed="1899-03-27" href="https://app.midpage.ai/document/estate-of-kisecker-6245248?utm_source=webapp" opinion_id="6245248">190 Pa. 476. It is unnecessary to multiply the citation of authorities, or to attempt to add anything further to what the learned judge of the court below has so well said as to this parenthetical expression.

Looking now at the circumstances, it is to be observed, that there is not the slightest evidence outside the paper, that she had made a gift to the church authorities — a fact which could easily have been proved if it had existed; that she was an aged woman, dependent wholly upon the income of an estate which at no time was large enough to reasonably warrant a gift in her lifetime of so large a sum; that the paper was written by herself; that she had it witnessed; and, finally, that it never was delivered to any one, but was carefully kept amongst her valuable papers where it was found after her death. We think it sufficiently clear upon the face of the paper, that it was not a mere declaration or acknowledgment of a past gift, and these facts and circumstances which we have just recited, are wholly inconsistent with a supposition that she intended her expressed “ wish ” to be carried out during her lifetime. As to the significance of the fact that the paper was not delivered, but was carefully kept amongst her valuable papers, we refer to the cases of Tozer v. Jackson, 164 Pa. 373" court="Pa." date_filed="1894-10-22" href="https://app.midpage.ai/document/tozer-v-jackson-6242537?utm_source=webapp" opinion_id="6242537">164 Pa. 373, 381; Kisecker’s Estate, 190 Pa. 476.

In addition, there is the testimony of Mary Shull, a niece, who saw her mother witness the paper at the decedent’s request, that the latter declared it was her will, or to quote from her testimony, “It may be that she said this was her wish.” Considerable stress is laid on the uncertainty of the witness’s memory as to the exact word used. But we do not regard this as invalidating or materially weakening the testimony. The word was used by the decedent to designate the paper which she asked her sister to witness, and as used in that connection, it is of little consequence whether it was “ will ” or “ wish.” The dispositive words of the will admitted to probate in Gas-ton’s Estate, supra, “ It is my wish,” were held in a convincing opinion by Justice Dean to be equivalent to “ It is my will.” There is the further testimony of Matilda Foust, which we quote: “ She said she had made provisions for that after her death, that she would like to have an iron fence put around the Lutheran graveyard. I said, ‘ Miss Mary, be sure to have it hr black and white.’ She said, ‘Tillie, it is in black and white. It is all right.’” Anna M. Cline also testified: “Before she died, I was up to see her, and she told me that her desire was to have a good iron fence put around the Lutheran graveyard, and that she would do it now but she hadn’t got the money while she was living:” It is not.claimed that the testimony of the last two witnesses would be sufficient to establish the testamentary character of the paper. It is, however, strongly persuasive evidence in support of that contention, and is undoubtedly competent. But omitting it from consideration altogether, there remains sufficient proof of the execution of the paper and of its testamentary character to warrant its admission to probate.

This is not a case where no testamentary intent is apparent on the face of the instrument, and where it must be proven exclusively by extrinsic evidence. In such cases, the authorities seem to hold that two witnesses are necessary, each of whom must separately depose to all facts necessary, to complete the chain of evidence, so that if only one witness were required the will would be fully proved by the testimony of either. That rule does not apply, certainly not in all its strictness, to a case where a testamentary intent is entirely consistent with the language of the paper fairly construed in the light of the facts as to its execution and preservation. This is well shown in the opinion of Judge Stewart, approved by the Supreme Court in Kisecker’s Estate, supra.

The decree is affirmed, and the appeal dismissed at the cost of the appellant.

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Dissenting Opinion

William W. Porter, J.,

dissenting:

I dissent from the opinion of the court because I am convinced that the document admitted to probate is not a will. Nowhere does an intention appear, on the part of the decedent, to die testate in respect to her estate. The words of the document relate to an act partially if not wholly consummated. By the use of the words “not bequeathed ” the decedent expressly negatives a testamentary intent and discloses a knowledge of legal phraseology which raises a presumption that, had she intended the document to be testamentary, she could have clearly expressed such intention.

The use of the words, “ This is my wish,” under some circumstances, might be equivalent to saying, “ This is my will.” This language, however, d.oes not make the paper testamentary in view of the assertion that the declaration is not a bequest. I am of opinion that it requires the court to travel beyond the instrument to find any intent on the part of the decedent to dispose of any part of her estate, to take effect after death. The paper would better be construed to be a declaration that she has made a gift or a promise to give to the purpose expressed. The reference to the collection of the money is consistent with such a construction. It is quite common to speak of a promise to give as a gift already made. The donor or promisor, not having the means to make the payment at once, intended that the money should be collected by herself or on her behalf, and applied as soon as possible. The thing to be done is not deferred until after death. The gift does not affect her own place of burial. The acts to be done are not those performable only by executors or administrators. I can find nothing in the case, save the testimony of one or more witnesses who say that the decedent referred to the paper as a will and the fact that the paper was found in the decedent’s possession, to support the view that the document was in purpose testamentary.

W. D. Porter, J., concurs in the dissent.