414 Pa. 313 | Pa. | 1964
Opinion by
This appeal challenges a decree of the Orphans’ Court of Allegheny County which dismissed an appeal from a decree of the Register of Wills admitting to probate a holographic writing dated September 4, 1954, as the last will of Charles S. Lanning (decedent).
Decedent, 93 years of age, died on August 26, 1960. On December 1, 1960, decedent’s lawyer-prepared typewritten will dated April 13, 1951, was admitted to probate. Three months later, George Moehring (Moehring), sole beneficiary under the holographic writing of September 4, 1954, appealed from the probate of the 1951 will. Moehring’s appeal was sustained by the Orphans’ Court of Allegheny County, and the Register of Wills was authorized to entertain an application to probate the 1954 will; thereafter, the 1954 will was duly probated. Shirley L. Lober, decedent’s niece and residuary legatee under the 1951 will, then appealed to the Orphans’ Court alleging (a) the 1954 will had been obtained through fraud, duress and undue influence exerted upon decedent by Moehring and his wife, (b)
After hearing testimony, the court upheld the 1954 will and dismissed the appeal. From that decree this appeal was taken.
Decedent, for many years a manufacturer’s agent acting principally for E. L. Post & Co., Inc., of New York (Post), retired sometime in 1954. Decedent lived in a home operated by a Mrs. Helen Wunderlich at 210 North Bellefield Avenue, Pittsburgh, from 1942 until either August or October of 1954 at which time he moved to a nursing home operated by Moehrings in Pittsburgh. Decedent’s nearest relatives were Shirley Lober, the contestant, and the Misses Bulette, cousins living in York, Pa.
In passing upon the issues raised upon this appeal, we recognize that the findings of facts of the chancellor, who heard the testimony without a jury, approved by the court en banc, are entitled to the weight of a jury’s verdict, that such findings are controlling and that the court’s decree should not be reversed unless it appears that the court abused its discretion or that the court’s findings lack evidentiary support or that the court capriciously disbelieved the evidence: Masciantonio Will, 392 Pa. 362, 367, 141 A. 2d 362, and cases therein cited.
This will contest presents several unique features: there is evidence (1) that on November 3, 1954, decedent was adjudged mentally incompetent and a guardian appointed for him, (2) that several guests in Moeh
As we read this record we cannot fail to note the scant consideration afforded by the chancellor to two vital factors, i.e., the establishment of the date of execution of this will and the effect of decedent’s adjudication as an incompetent upon the issue of testamentary capacity. In the case at bar, it is most important the actual date of execution of this will be ascertained. Its importance is two-fold: (a) it is decedent’s testamentary capacity on that date which determines the will’s validity (Williams v. McCarroll, 374 Pa. 281, 293, 97 A. 2d 14; Masciantonio Will, 392 Pa. 362, 384, 141 A. 2d 362); (b) whether execution preceded or followed the incompetency adjudication of November 3, 1954 determines whether the burden of proof as to testamentary capacity or lack thereof is upon proponent or contestant.
To establish execution of this will on September 4, 1954, proponent produced the testimony of the two subscribing witnesses, Jo Evelyn Johnston and Robert Johnston, her husband.
To prove decedent was not living in Moehrings’ home on September 4, 1954, and did not begin to live there until October 6, 1954 — 82 days after the date of the alleged will — contestant produced two witnesses, W. L. Vaughan, President of Post (decedent’s principal customer) and Mrs. Wunderlich in whose home decedent had lived for approximately 12 years. Vaughan produced a letter addressed to him by decedent dated September 15, 1954, wherein decedent states, inter alia, that he will be “compelled to give up my room at 210 Bellefield [the Wunderlich home] in a few days
Mrs. Wunderlich testified that in the fall of 1954 it was necessary that she go to the hospital to undergo surgery and, as a result, she was unable to take care of decedent. While endeavoring to locate a place for decedent to live, she noted in a newspaper an advertisement of Moehrings’ nursing home.
The chancellor, who saw and heard these witnesses, in his opinion said “Mrs. Wunderlich and Mr. Vaughan were honest, disinterested and forthright witnesses”, Having thus placed his imprimatur on the credibility of these witnesses, the chancellor’s subsequent repudiation of their testimony, without any apparent or assigned reason, is beyond comprehension. If the “honest, disinterested and forthright” Mrs. Wunderlich is to be believed, decedent could not have been living in Moehrings’ home on September 4, 1954. Nevertheless, the chancellor accepted Johnstons’ and Moehrings’ testimony that decedent was in Moehrings’ home on that date.
Moreover, in his opinion, the chancellor observed that the accuracy of the date of September 15, 1954, in the decedent-to-Vaughan letter would have been sub
Appellee argues that the exact date of a will is not essential to its validity and that an erroneous date will not vitiate the instrument, relying on Bates’s Estate, 286 Pa. 583, 134 A. 513, and Baum’s Estate, 269 Pa. 63, 112 A. 141. We have no quarrel with Bates or Baum; however, both are presently inapposite in this respect. In the case at bar the date of the will is of crucial importance. If the date of this will is not established with some certainty, how can the testamentary capacity or lack thereof at that time he established? Likewise, how can the impact of decedent’s adjudication of incompetency on proof of his testamentary capacity be evaluated?
An adjudication of mental incompetency made prior to the execution of a will does not command the conclusion that such will is invalid for lack of testamentary capacity: Leckey v. Cunningham, 56 Pa. 370; Hoopes’ Estate, 174 Pa. 373, 34 A. 603; Hoffman’s Estate, 209 Pa. 357, 58 A. 665; Sterrett’s Estate, 300 Pa. 116, 150 A. 159. However, where a person is adjudicated to be a mental incompetent and thereafter, during the pendency of such adjudication, executes a will, the burden is shifted to the proponent of the will to show that at the time the will was made such person possessed testamentary capacity: Harden v. Hays, 9 Pa. 151; Titlow v. Titlow, 54 Pa. 216; Hoopes’ Estate, supra; Brennan’s Estate, 312 Pa. 335, 339, 168 A. 25; Mahler’s Estate, 343 Pa. 299, 305, 22 A. 2d 680; Girsh Trust, 410 Pa. 455, 468 (footnote), 189 A. 2d 852.
In Baum, this Court said there was a presumption that the date inserted by a testator himself on a will is the correct date and that such presumption could
Without having fixed with any degree of certainty the date of execution of this will as prior to the adjudication of incompetency, the court evaluated the evidence on the basis of the rules applicable only to a preadjudication execution of a will, i.e., that testamentary capacity is to be presumed and that the burden of proving lack of testamentary capacity is upon contestant. Such was clearly error. The evidence must, and does not, fix the date of execution of the will with relation to the date of adjudication of incompetency with some degree of certainty; unless and until such date is fixed the court was not in a position to determine upon whom rested the burden of proof.
On the question of testamentary capacity, the matter must be remanded to the court below for the pur
In view of our conclusion that this matter must be remanded to the court below for the reception of the additional evidence and a reconsideration of the thus augmented record, it might not be amiss to note the presence in this case of a concatenation of circumstances which, at the very least, in the words of the court below “cast a shadow of suspicion” on this will. The Knox, Lunt and Luse incidents — all introduced into evidence to show a course of conduct and a pattern of behavior of Moehrings vis-a-vis other aged guests in their home
Nursing homes have become commonplace, and the vast majority of the operators thereof are honest and highly scrupulous persons. Nevertheless, we must recognize that the aged and the infirm in such homes, most naturally, become greatly dependent on the care and ministration of those in charge of such homes. It could well be that, in the hands of unscrupulous persons, such dependence could well be utilized to improperly influence the aged and infirm in the post-mortem disposition of their property. To the possibility of such danger courts charged with the administration of decedents’ estates must ever be alert.
In the case at bar, against the background of the Knox, Lunt and Luse incidents and in view of the serious challenge made by contestant to the duration of
Crucial in this will contest is the ascertainment of when this will was made. An answer to this question may well cause all the other pieces of this unique puzzle to fall into place.
Decree reversed and the matter remanded to the court below for proceedings consistent with the views expressed in this opinion.
On November 1, 1961, a petition was presented to the Register of Wills to show cause why Moehrings should not be required to produce a third will allegedly in Moehrings’ possession. The Register certified this matter to the Orphans’ Court. That court was requested to try the issue of this later will at the same time as the trial of the validity of the 1954 will. The court denied this request and dismissed the petition.
Robert Jobnston testified only at tbe preliminary bearing at wbicb tbe court determined a prima facie ease bad been established to justify opening of tbe probate of tbe 1951 will. Robert Jobnston did not appear at tbe bearing before tbe court on tbe appeal from tbe probate of tbe will and tbe court, in its opinion, refers to tbe testimony of Robert Jobnston given at tbe preliminary bearing.
From the opinion of the court below.
Johnstons testified decedent was of sound mind on September 4, 1954. However, Mr. Johnston stated: “If you had asked me, then are you sure it was September 4, 1954 ... to be honest I would have said ‘no’.”
Attorney Baker, Moehrings’ lawyer and, apparently, decedent’s lawyer after decedent went to live with Moehrings, also figured in incidents in connection with other guests in Moehrings’ home related, infra.
After this conversation, Vaughan went to his hotel and made this memorandum: “March 23rd, 1960 4:15 P.M. Baker to Vaughan, Regarding his will, Mr. Vaughan, Banning knew he had been declared incompetent and cleverly predated the will so that it could not be contested . . . .” This memorandum is in evidence.
This advertisement was received in evidence.
Dr. Kretz had no records available.
Moehrings obviously are interested witnesses. While it was for the chancellor, not us, to pass upon credibility of witnesses, including their interest or lack thereof, the testimony as to interest on Johnstons’ part is strong.
Should be “clear, precise, direct and convincing”.
The question of the admissibility of this evidence is not at issue.
In addition to the newly discovered evidence referred to in this opinion, contestant endeavored to show other newly discovered evidence to the effect that a nursing home on Negley Avenue, Pittsburgh, had not been purchased by a Mrs. Gleason until March, 1947. The importance of this was to discredit Moehrings’ story that they ■first met decedent at Gleason’s nursing home when decedent’s brother was a guest therein and when Mrs. Moehring worked there. The evidence which contestant was not permitted to show would indicate decedent’s brother died prior to opening of the Gleason home and that Mrs. Moehring never worked there.