133 Pa. 245 | Pennsylvania Orphans' Court, Montgomery County | 1890
Opinion,
The reasoning and the authorities cited, in the opinion of this court in the case of Myers v. Vanderbelt, 84 Pa. 510, make it very clear that we intended to decide, and did decide, that the writing of a will in pencil is the full equivalent for a writing in ink. Mr. Justice Mercur, in the course of the opinion, said: “ So we think the authorities establish that a valid will may be drawn with the same materials that will suffice for the drawing of any written contract. As was well said by Mr. Justice Coulter in Hill v. Scott, supra (12 Pa. 169), they abundantly prove that a writing in pencil is equivalent and tantamount to a writing in ink.” We there held that a will, the whole of which was written in lead pencil, was in compliance with the requirement of the Wills Act of April 8, 1833, that “ every will shall bo in writing.” We are entirely satisfied with that decision, and have no disposition to change or modify it. The learned court below thought that, because the cancellation-
It is argued that the will was found among papers of no value, and therefore we must infer the alterations were deliber
Another circumstance, to which the court attached consequence, was that a paper was found in the testator’s box at bank which contained a list of the legatees as they were named in the will, and with all of the legacies canceled in pencil that were so canceled in the will, except one, John Keller, whose name was canceled, but not the amount, $500. The court thought this was proof that the testator was still vacillating, (in 1883 or 1887,) because John Keller’s name and legacy were not canceled in the will, and therefore that all the cancellations should be regarded as deliberative only. We cannot consider this circumstance as having such a meaning. To us it is indicative rather that the paper found in the bank was probably his first or deliberative memorandum, which he made final when he made the cancellations in the will, and there he concluded to let Keller’s legacy remain. We find no other facts in the ease indicating that the testator did not intend to do that which in fact he did do, and hence we are of opinion that the view of the whole subject taken by the learned auditor was the correct view, and that it was error to overrule his report.
The decree of the Orphans’ Court is reversed, at the cost of the appellees, and the record is remitted, with instructions to distribute the fund in accordance with the report of the auditor.