365 Pa. 551 | Pa. | 1950
Opinion by
The appeal concerns the partial revocation of a will by obliteration. The pivotal issue is whether an effective obliteration was established.
Emma Grable Hildebrand, the testatrix, was an aged widow, who had resided with her step-son for many years and raised the step-son’s daughter, Mildred Hildebrand Dunn. Mrs. Hildebrand died, testate, on April 22, 1946. Her heirs and next of kin were four nieces. The probated, typewritten will was professionally prepared and is dated July 19, 1935. tinder the terms of the will $3,000 was bequeathed to Mildred Hildebrand Dunn (child of her step-son), $2,000 to Martha Horn Amos (niece), $1.00 each to Odessie Grable and Maggie Grable Fowler (nieces) and $2,000 to Mary Grable Conkle (niece and contestant). The seventh item of the will, the residuary clause, reads as follows: “Seventh. As to all the rest, residue and remainder of my estate of which I may die seized or entitled to at the time of my death, whatsoever and wheresoever, I give, bequeath and devise to be equally divided among Mildred Hildebrand Dunn, Martha Horn Amos, mguirnmmiiMiimmmmmmiimmmsima share and share alike.”
Mildred Hildebrand Dunn was named as Executrix. Following testatrix’s conceded signature and the duly executed attestation clause, and at the spatial end, appear the following unsigned words in the admitted handwriting of testatrix: “I Emma Grable Hildebrand marked off one name in Seventh (7)”
After the death, the will was found in a sealed professional envelope of testatrix’s predeceased scrivener-lawyer in the testatrix’s safe deposit box.
Where testator had custody of the will, the presumption is that any obliteration was his own act: Baptist Church v. Robbarts, 2 Pa. 110; Evans’s Appeal, 58 Pa. 238; Wood’s Estate, 247 Pa. 377, 93 A. 483; Sando Will, 362 Pa. 1, 66 A. 2d 312; Lindeman’s Estate, 141 Pa. Superior Ct. 225, 14 A. 2d 837; Heller Estate, 158 Pa. Superior Ct. 194, 44 A. 2d 528. The fact that Mildred Hildebrand Dunn had joint access to the testatrix’s safe deposit box will not of itself rebut this presumption. Contestant submitted no proof to the contrary. Mrs. Dunn testified that she had neither seen the will nor knew of its existence before the death. See Wood’s Estate, 247 Pa. 377, 381, 93 A. 483.
The obliteration, constituting a broad, thick line or smear of ink, approximately two and a quarter by one-eighth inches, wholly effaced, blotted out and rendered imperceptible that which had been written under it. Such method of obliteration is clearly within the Act. There is no requirement, statutory or decisional, which requires the proponent to prove whose name was obliterated or what word or words were obliterated. As the obliteration was complete we need not consider other forms of obliteration, such as lines drawn through a writing or signature: Evans’s Appeal, 58 Pa. 238; Heller Estate, 158 Pa. Superior Ct. 194, 44 A. 2d 528.
Testatrix, in her admitted handwriting at the bottom of the will following its execution, declared that she had "marked off one name in Seventh (1).” True she
Decree affirmed at appellant’s cost.