Opinion by
Sаrah Gray died March 18, 1948, at the age of 93, leaving a will dated September 21, 1945. She left to survive her, two sons and two daughters; three grandchildren (who are children of a deсeased son); four grandchildren (children of another deceased son); and four great-grandchildren (who are children of a deceased son of one of decedent’s deceased children).
In her will dated September 21, 1945, decedent left small pecuniary bequests to all of her descendants, her house and lot to her daughter, Lucy, and the residue of her estаte to her three children, Rachel, Donley and Lucy, in equal shares. Her son, Ross Gray, appealed from the probate of the will alleging (1) a later will dated January 22, 1946; (2) lack of testamentary capacity; and (3) undue influence.
The learned trial judge, President Judge Matthews, in a very able and exhaustive opinion, discussed cоntestant’s evidence and his contentions of lack of testamentary capacity and of undue influence as well as all the incidental but important questions that arose in this case; and held (1) that the writing dated January 22, 1946 was not a valid will; (2) that testatrix had
Ross Gray appealed from the court’s decree, but probably because of the lower court’s convincing opinion, limited this appeal to questions arising out of the writing of January 22, 1946. Gray contends (1) that said writing, which was signed by a mark and witnеssed by two persons, only one of whom, however, signed her name as a witness thereto, was a “will or other writing” within the meaning of Section 5 of the Wills Act of April 24, 1947, P.L. 89; 20 PS §180.5, and (2) that said writing аnd other testimony evidenced an intention upon the part of the testatrix to revoke her will of September 21, 1945, and therefore an intestacy resulted.
The subjeсt of revocation and revival of wills has bothered and perplexed courts throughout America for over a century (See Burtt Will,
The “will or other writing” of January 22, 1946, and the surrounding circumstances are as follows: Testatrix frequently discussed with a neighbor, Mrs. Fаnnie Graff, changing her will so as to leave her estate to her children equally. Mrs. Graff, on January 22, 1946, told Mrs. Gray that she would write a letter for her and give it to her lawyer (although the only person she knew to give it to was Mr. Powell at the bank) if Mrs. Gray would sign it. “. . . I wouldn’t mind telling him
“January 22, 1946, The house and lot where I live to go to my children, Lucy Myers, Anna Tustin, Ross Gray, Donley Gray. The $500.00 I paid for Ross Gray is not to be countеd out of his share of my estate. My government bonds are to be divided equal between my children, Ross Gray, Donley Gray, Lucy Myers and Anna Tustin. (Signed) Mrs. Ella X (her mark) Gray. Witness: Fannie Graff”.
Mrs. Graff testified on direct examination, “I did not think of1 it as a will”. Mrs. Graff further testified bn cross-examination, “And you say this was intended as a letter? A. Yes, it was intended as a letter”. In other words, Mrs. Gray did not intend this as a will but as a letter of instruction tо her attorney for the preparation of a new will; and the letter or writing was retained by Mrs. Graff and never delivered to the bank or to an attorney to enablе him to prepare a new will.
Mrs. Anderson was present and saw Mrs. Gray make her mark but did not sign her name on the paper as a subscribing witness. Mrs. Anderson corroborated Mrs. Graff as to the preparation of this writing under Mrs. Gray’s dirеction, but made no statement concerning the purpose of the writing as testified by Mrs. Graff.
The first question that arises is, was this writing of January 22, 1946, a will and if so, was it probatable as suсh? The learned trial judge found and we agree that this writing was testamentary in character: Davis’s Estate,
The Wills Act of April 24, 1947 provides in Section 22 that the Act “shall take effect on the first day of January, one thousand nine hundred forty-eight, and shall apply only to the wills of all persons dying on or after that date”. It is clear, therefore, that the testamentary writing of January 22, 1946 is not a vаlid will and cannot be probated as a will since the testatrix died March 18, 1948: Spain’s Estate,
The question, however, remains, did the aforesaid writing of January 22, 1946 revoke testatrix’s will of September 21, 1945, and if so, did an intestacy result, or was the will revived because the writing of 1946 could not be probated as a valid will? The writing of 1946 was inconsistent with and disposed of Mrs. Gray’s estate in an entirely different manner than the earlier will of 1945 but contained no clause of revocation. Section 5 of the Wills Act of April 24, 1947 provides:. “No will or codicil in writing, or any part thereof, can be
In order to revoke Mrs. Cray’s will, it is clear from the aforesaid statutory requirement, that there must be (a) some other writing; (b) it must declare the (earlier) will of 1945 revoked; and (c) the writing must be executed and proved in the manner required of a will signed by a mark.
The “other writing” does not have to be a valid or probatable will: Burtt Will,
Furthermore, the declaration of revocation need not be еxpress, it may, under the authorities, be by necessary implication. An earlier will can be revoked by a later will or other writing which expressly revokes it, or which disposes of an estate in an entirely different manner than the earlier will and is inconsistent therewith. There is no difference in principle between a revocation by аn express clause or by inconsistent provisions : Burtt Will,
Equally important, this “other writing” must be executed and proved in accordance with the statute: Shetter’s Estate,
Since we have decided that there was no revocation by the writing of January 22, 1946, it is unnecessary to discuss the question of a possible revival of the will of September 21, 1945 under Section 6 of the Wills Act of 1947.
Decree affirmed at the cost of the appellant.
Notes
Italics throughout, ours.