175 A. 424 | Pa. | 1934
The appeals before us involve the disposition of the estate of Frederick W. Koehler, who died January 20, *322 1933. Following his death, there was admitted to probate a duly executed will dated January 24, 1921, which was found among decedent's personal papers, in a desk in the room in which he slept and where he died. An appeal from the probate was taken to the orphans' court, appellants in their petition averring they believed and expected to be able to prove that, in the summer or fall of 1929, decedent had executed another will revoking the one of 1921; that decedent had taken possession of this later will; and though search had been made, the instrument had not been found. The prayer of appellant's petition is that an issue be awarded to determine whether or not Frederick W. Koehler executed a writing in 1929 which revoked the will of 1921, or whether the latter was his last will and testament. While the petition states the alleged later will differed materially, in the number and amount of bequests, from the earlier testament, no attempt is made to establish the one of 1929 in place of the probated will; in fact petitioners admit their inability to produce it and fail to allege fraud in connection with its disappearance. The sole object of appellant, as it appears from the petition and the argument in this court, is to prove that the will of 1921 was revoked by a clause of the one of 1929, — to be regarded either as a will or as "some other writing," — and that an intestacy results.
Appellants further entered a rule for a commission to take the testimony on interrogatories of Paul P. Wentz of Hollywood, California, who is named in the petition as one of the two witnesses to decedent's will of 1929.
The court below correctly held that, under section 20 of the Wills Act of 1917, P. L. 403, a will could not thus be annulled by parol testimony of an unproduced written revocation; that revocation could be established only by a writing produced, as was done in Ford's Est.,
The order of the court below sustaining objections to the rule for a commission to take testimony, and the decree dismissing the petition and quashing the appeal from the probate of the will and sustaining the will as probated, are both affirmed. Costs to be paid out of the estate.
Mr. Justice LINN dissented.