269 Pa. 103 | Pa. | 1920
Opinion by
Henry T. Hager died March 9, 1919, at the age of 51 years, leaving a will dated April 19, 1918, by which he gave his entire estate, of between $20,000 and $22,000, to Louise Kustus, the plaintiff in this case, “in consideration of her friendship and faithful service to me.” At the time of his death his nearest relatives were a brother, a sister and four children of a deceased sister, all of whom are defendants here. The register of wills admitted the paper to probate, but on appeal to the orphans’ court a precept was issued to the court of common pleas to determine: “(1st) Did testator lack testamentary capacity at the time the will was executed? and (2nd) Was the testator unduly influenced by Louise
The only assignment of error challenges the entry of judgment non obstante veredicto, and hence his testamentary capacity must be treated as established. Appellants strongly urge, however, that there was ample evidence from which the jury could have found testator’s mind had become weak by reason of excessive drinking and other bad habits; that this finding was not inconsistent with testamentary capacity; and that meretricious relations had existed for some time between him and plaintiff. They therefore insisted that a presumption of undne influence arose from which the jury were justified in finding its existence, and hence the court below erred in setting aside the verdict on this point. Nothing would be gained by reviewing at length the evidence in regard to these contentions; suffice it to say we agree with appellants that there was testimony from which the jury could have found those facts, that therefrom the presumption claimed ordinarily does arise, and that there is no essential inconsistency between the findings of testamentary capacity and a mind to some extent weakened by excesses. It by no means follows, however, that undue influence is a necessary conclusion from these admissions, or even that they compel the leaving of this question to a jury. There still remains the inquiry whether or not the influence of the relation stated controlled the mind of testator at the time and in the very act of making his will: Trost v. Dingler 118 Pa. 259; Englert v. Englert, 198 Pa. 326.
Where, as here, the determination of the issue thus raised depends upon inferences drawn from certain
Assuming testator’s mind was not as strong as it had been in earlier years, the extent of its impairment was still a matter of great importance, and, regarding this, much of the testimony produced by contestants is opinion evidence of the most unsatisfactory kind. Some of those who are now most positive he had been incapable of transacting business for a number of years, did not then hesitate to loan him money and thereafter collect it. Others positive as to his inability to intelligently transact business, áre at least equally sure their opinion on this point would be unchanged though it were shown he always intelligently transacted it. One was certain testator was so far gone, mentally and physically, he could not even write his name unless the pen was strapped to his finger, yet was unaffected by the fact that without such aid he constantly wrote and signed leases, checks, etc., up to the time of his death. One of the contestants loaned him $380, took from him a judgment note therefor and afterwards, to his great annoyance, entered it up and collected it through counsel, though
On the other hand a careful scrutiny of the evidence fails to disclose that testator ever performed any unwise business act. He leased the stores and rooms in the buildings owned by him, collected the rents and wrote the receipts therefor, deposited them in his bank account and drew the money out as he needed it, arranged for re-' pairs necessary to be made to the building, borrowed money, gave proper obligations therefor, paid them in due course, made the necessary purchases for his personal use, and generally did everything which a man, situated as he was, would have done under like circumstances. In considering whether or not testator knew and understood what he was doing when he made his will, we must start, therefore, not only with the fact that he had mental capacity, but also that whatever weakness of mind existed was not shown to have resulted in any foolish or unbusinesslike act; and this is an important consideration, for “as a general proposition less capacity is sufficient to make a valid will than to transact ordinary business”: Thompson v. Kyner, 65 Pa. 368; Guarantee Trust and Safe Deposit Co. v. Waller, 240 Pa. 575.
So, too, in considering the question of undue influence, assuming a meretricious relation existed between
In the light of his condition of mind, and of her kindness to and contestants’ neglect of him, we must consider the occurrences when the will was executed. For this purpose testator and plaintiff went to his lawyer’s office, at a time arranged between him and the lawyer. They traveled there in a trolley, sitting on opposite sides of the car. Next to testator was a friend of his to whom he stated he intended to make a will in plaintiff’s favor. Arriving at the lawyer’s office, she was left in the waiting room and he and his lawyer talked over the matter of the will in the latter’s private office, testator stating of what his estate'consisted and that he intended to leave it to plaintiff “because she was the only disinterested friend that he had.” Having heard of testator’s drinking habits, the lawyer called in his own brother, also a lawyer, from an adjoining room, so that both might be satisfied as to testator’s condition. At that time he was sober and had not been drinking for about sixty days, and they both testified he was fully competent to make a will. Plaintiff was then called into the room to give her exact name, and, upon being told what testator was doing, objected thereto, and said all she desired was to be paid the money she had loaned or expended, and for the services she had rendered, and that the balance of his estate should be given to his relatives. To this, however, he would not consent, saying: “This is my business and I will do it in my own way.” His counsel then dictated the will to the stenographer by whom it was typewritten, it was read by testator, acknowledged to be his will, and he requested the two lawyers and the stenographer to witness it, all in plaintiff’s absence.
The will itself is brief and easily understood, and did not require great business ability either in determining
We, therefore, have the case of a man of testamentary capacity, making a will under the advice and with the assistance of his counsel and in the absence of his beneficiary, who was the only friend in need he had during the later years of his life; and though there is evidence of some weákness of mind it is not shown to have affected any business matter, and certainly sufficient strength remained for him to fully comprehend what he was doing. Under such circumstances, even assuming meretricious relations to have existed between testator and plaintiff, no chancellor would permit a will to be set aside on the ground of undue influence: Wainwright’s App., 89 Pa. 225; Johnson’s Est., 159 Pa. 630; Kane’s Est., 206 Pa. 204; Allshouse v. Kelly, 219 Pa. 652; Watmough’s Est., 258 Pa. 22. It may be a work of supererogation to cite
“In point of fact the case is absolutely destitute of proof of a single act of influence, undue or otherwise, on the part of Mrs. [Kustus]. There is no testimony to show that she ever, at any time or in any circumstances, even so much as asked him to make a provision in her favor”: Johnson’s Est., supra.
“The draftsman of a will, especially if a lawyer or conveyancer, is always an important and usually the most important witness in the case, and where as here he had known the testator well for a long time and shows circumstances of voluntary and intelligent action by testator at the time, his testimony makes a prima facie case that requires very strong evidence to offset”: Kane’s Est., supra, p. 207.
“The suggestion of undue influence in connection with the making of the will springs from the fact that the principal beneficiary, the [plaintiff] in the issue, is a woman with whom the testator, for several years before his death, sustained illicit relations......While it is entirely natural that circumstances such as we have here should excite suspicion in a way to lead to inquiry and investigation, yet of themselves they furnish no sufficient evidence of coercion or constraint in connection with the making of the will: Rudy v. Ulrich, 69 Pa. 177. Where evidence has been offered showing some moral or physical constraint operating on the mind of the testator at the time the will was made, such circumstances as those above referred to may properly be considered in an issue of this kind; but to allow a jury from such circumstances alone to defeat a disposition a testator has made of his property, would be in open disregard of the unquestioned right which everyone master of himself has to give his property to whom he pleases. So far as appears, this testator, in making his will, was interfered with by no one, even to the extent of a request that he would make a will; none of the beneficiaries were pres*112 ent at the execution of the will......Whatever may be said in condemnation of the relation sustained by the testator to the [plaintiff] on the ground of its immorality, and the likelihood of such relation resulting in family estrangement, with impairment uf individual character, none of these things of themselves can operate to defeat a will giving to the partner in guilt a share of the estate, be it large or small, where the testator at the time of making the will was master of himself. There is not a particle of evidence in this case to warrant an inference that the testator was in any degree subjected to the will or power of another in the act of disposing of his estate”: Allshouse v. Kelly, supra.
The judgment of the court below is affirmed.