173 A. 407 | Pa. | 1934
Lead Opinion
Charles J. Harrison died leaving a will dated May 29, 1926, which was admitted to probate on November 14, 1932. On December 6, 1932, Nelle H. Brydon, decedent's daughter, presented a petition to the orphans' court for appeal from the act of the register in admitting the will to probate. Among other things, petitioner alleged that the decedent on June 17, 1927, had executed another will which had been lost, concealed or destroyed, in which he revoked his prior will and disposed of his estate in equal parts to his two children, petitioner and Charles J. Harrison, Jr. She prayed for an issue to determine, inter alia, whether the decedent by his subsequent will had revoked the earlier one. The orphans' court refused the issue and Nelle H. Brydon has appealed.
The only questions presented for our consideration are those which arise out of the alleged revocation of the probated will. May a lost will be proven by the testimony of one witness and corroborating circumstances or must there be two witnesses as the Wills Act prescribes?
Wills differ from all other documents. By statute and judicial decision they are put in a class by themselves in order as far as possible to safeguard their integrity. One of the reasons for this is that the person most concerned about a will cannot come forward to defend it. Death has stilled his tongue. In the reports on the shelves of law libraries there are hundreds of cases in which fraudulent *17 writings have been set up as valid testaments. Judges have had to take account of this; hence the endeavor to circumvent cupidity and cunning by hedging about the disposition which a man makes of his property by every reasonable safeguard which human foresight can bring to bear. This is a part of the broad public policy which society, represented by the State, announces through its tribunals, judicial and legislative, to increase the difficulties and hazards standing in the way of the would-be perpetrators of fraud.
Appellant contends that she is a competent witness and that where there is one competent witness to a lost will, circumstances may supply the lack of another. Assuming, as we do, that there was a later will and that appellant was a competent witness, we are of opinion that circumstances may not supply the lack of another witness. Section 2 of the Wills Act provides that "Every will shall be in writing . . . . . . signed at the end thereof, and, in all cases, shall be proved by the oaths and affirmations of two or more competent witnesses; otherwise such wills shall have no effect." A will is proved, therefore, not by circumstances, but by the direct testimony either of two witnesses who saw the testator sign it or by two witnesses who are familiar with his signature and identify it.
No witness was called who testified that he saw the decedent sign the lost will. One of the witnesses whose name appeared as a subscribing witness upon what purported to be a copy of the alleged will could not remember signing such a document or seeing the decedent execute it. The other name appearing upon the copy as a subscribing witness was that of a man who had predeceased the testator. The appellant testified that she saw the original of the lost will, and identified her father's signature affixed to it. No other witness so testified. A lost will should not be capable of proof in a way that one produced could not be proven. Circumstances cannot take the place of the second witness to a will which *18 is produced. They cannot legally or safely be permitted to do so in the case of a will which is not produced.
The proofs required to establish a lost will have always been required to be strict and complete, as they should be. All our cases show this. Where a lost will is sought to be established there must be produced, not only two competent witnesses of its execution, but also two witnesses to show its contents. Not otherwise can it be known whether or not, upon a consideration of the entire document, its true construction is as appellant claims it is from the consideration of a single sentence which she alleges appeared in it. In Hodgson's Est.,
Appellant argues that while the alleged will of June 17, 1927, may not have been sufficiently proved to entitle it to probate as a will, it should be accepted as an "other writing" showing revocation of the probated will. The statute of wills (Act, June 7, 1917, P. L. 403, 20 P. S., section 271) does not provide that the revoking document must be another will. It can be any sort of writing. Section 20 says: "No will in writing . . . . . . shall be repealed, nor shall any devise or direction therein be altered, otherwise than by some other will or codicil in writing, or other writing declaring the same, executed and proved in the manner hereinbefore provided. . . . . . " The requirement "executed and proved in the manner hereinbefore provided" refers back to section 2 — by "two or more competent witnesses." This is the way that a revocation must be proved, "proved in the manner hereinbefore provided." Since the instrument of June 17, 1927, was not so proved, it cannot serve as a revocation any more than it may serve as a will. *20
It may not be amiss to make brief reference to and some comment upon the larger question involved in this appeal. May an existing will be rendered nugatory by proof of a subsequent writing alleged to have contained a revocation, where the writing itself is not produced? We call attention to Ford's Est.,
While it is charged by appellant that the probated will of her father is an unnatural one, because it cuts her out of all participation in his estate, this may not correctly describe it. Testator delivered the will to his son for safe keeping, and in connection therewith delivered to him also a letter, in which he enjoined the son to give to his sister from the estate an amount which would equal the son's share, taking into account certain expenditures which the father had incurred on his daughter's and her husband's account. The son in a letter given to his sister shortly after the will was executed said to her that one-half of the estate in accordance with his father's letter is to go to her and her heirs. In his answer filed he affirms this undertaking.
We think the case was properly disposed of by the court below.
Decree affirmed at appellant's cost. *21
Dissenting Opinion
I dissent from the view of the majority on what is said to be "the larger question involved in this appeal," stated in the opinion as follows: "May an existing will be rendered nugatory by proof of a subsequent writing alleged to have contained a revocation, where the writing itself is not produced?"
While the Wills Act prohibits oral revocation, no support can be found in the act for the proposition that a lost written revocation cannot be proved, if the secondary evidence is sufficient.1 The pertinent portions of the act are quoted by the majority: "Section 20 says: 'No will in writing . . . . . . shall be repealed . . . . . . otherwise than by some other will or codicil in writing, or other writing declaring the same, executed and proved in the manner hereinbefore provided. . . . . . ' The requirement 'executed and proved in the manner hereinbefore provided' refers back to section 2 — 'by . . . . . . two or more competent witnesses,' " as in the case of a will.
I assume that it is not proposed to overrule the cases holding that a lost will may be proved. In Foster's App.,
Mr. Justice MAXEY concurred in this opinion.