436 Pa. 94 | Pa. | 1969
Opinion by
Mary Cuff Franey (hereinafter, referred to as. the testatrix), at the age of 75, suffered a heart attack on the afternoon of June 3, 1966, and died .approximately three hours later. Testatrix was a widow who left no surviving children. A .columnar ruled sheet of paper which was in the testatrix’s handwriting on; both sides of the sheet was offered to, the Register of. Wills for •probate. The- Register :probated only that side of the paper which bore the signature of testatrix and the date “June S, 1966,” and the words “last will & testament.” . .... ..... .....
Mary Cuff Kane, a' niece of testatrix/ filed an appeal from the probate in which she contended (a) that both sides of the aforesaid sheet of paper should have been probated or, in the alternative, (b) that a holographic, seven-page will
The probated sheet of paper
The reverse side (which was not probated) of the sheet of paper appears as follows:
The record, including the testimony, shows that early in 1966 the testatrix wrote in her own handwriting, on seven pages of her stationery, a detailed disposition of her property, with particular. emphasis on her personal effects, many of which were given to appellant. .. This, writing, dated March 10, 1966, pertinently. provided: “I, Mary Cuff Franey in good health and sound mind and of my own free will, in case of a sudden and unprovided death, do give away and bequeath
The Orphans’ Court decided that the aforesaid seven-page writing or will dated March 10, 1966; had been impliedly revoked by the above-mentioned probated sheet (wili) dated June S, 1966. This sheet contained no provision concerning revocation; the relevancy and the importance of this will be discussed hereinafter.
The Judge also refused to probate the reverse side of the sheet on the ground that it was simply a memorandum which had been used by the decedent in the preparation of her March writing. We agree that this was simply a memorandum and was not intended by the decedent to be a will.
The Court further held that the June 3, 1966, sheet, which contained no clause of revocation, impliedly revoked the March 10 instrument which on its face appeared to be a valid will. The June 3, 1966, sheet-will, although it contained no revoking clause, did contain a remainder clause. It is not clear whether it was intended to be a bequest of all of testatrix’s estate, or
“The subject of revocation and revival of wills has bothered and perplexed courts throughout America for over a century.” Gray Will, 365 Pa. 411, 413, 76 A. 2d 169. A prior will can be invalidated or revoked by a later will or other writing which expressly revolves it. It ecm also be revolved by a subsequent will, without any express words of revocation, (1) by necessary implication, or (2) by a complete disposition of testator’s entire estate, or (3) by disposition of testator’s estate (a) in a manner entirely different from the earlier will and (b) inconsistent therewith. Crooks Estate, 388 Pa. 125, 130 A. 2d 185; Gray Will, 365 Pa., supra (page 416); McClure’s Estate, 309 Pa. 370, 165 Atl. 24; Teacle’s Estate, 153 Pa. 219, 25 Atl. 1135; Hartman’s Estate (No. 1), 320 Pa. 321, 182 Atl. 234; I Jarman on Wills, page 333. In the light of our remand Order, we do not now decide whether the aforesaid sheet of paper dated June 3,1966, revoked the will dated March 10, 1966, assuming that the March 10 instrument was a valid will.
We deem it unnecessary to detail the confusing testimony and the depositions and conflicts of the various witnesses, especially the testimony of the proponent of the will, Michael Sullivan, and the unsworn deposition of the subscribing witness, Camille Tierney, and the weak recollections of Stella Siedlarz, testatrix’s housekeeper and companion and beneficiary. It will suffice to say that Michael Sullivan, a former business associate of the testatrix and proponent of the sheet-will and its chief beneficiary, was called as a witness by appellant. He gave testimony which conflicted in some parts with the unsworn deposition of the subscribing witness, Camille Tierney, and with the weak recollections of the other witness, Stella Siedlarz, who was present when the sheet was signed but did not
We reverse and remand for a new hearing and further consideration of all the testimony, including the attendant circumstances, for the following reasons: (1) It was error under the circumstances for the Court below to refuse the contestants of the probated will the right to call Sullivan as an adverse witness and as for cross-examination; (2) it was error under the circumstances for the Court below to refuse the contestants the right to examine Sullivan at the hearing before the Court on matters covered in the pretrial depositions; (3) it was error under the circumstances to have admitted in evidence the unsworn answers to interrogatories of Tierney, a subscribing witness to the will.
Costs to abide the result.
The paper was termed a “will.”
As well as the other side of the sheet of paper.
Italics, ours.