211 Pa. 462 | Pa. | 1905
Opinion by
John Christian Lappe, age eighty-five years, died at his home in Allegheny city on July 25, 1901, and was buried two days thereafter. He left to survive him children of a first and second marriage, grandchildren who were children of two deceased daughters of the first marriage, and a stepdaughter. On the day of the funeral a fruitless search for a will was made at his residence when all the parties interested in the estate were present. In about ten days thereafter, with the consent of all the interested parties, letters of administration on his estate were granted to the Fidelity Title & Trust Company of Pittsburg. Some months later Anna M. Gfeller, his stepdaughter, offered for probate to the register of wills of Allegheny county a will of the deceased dated August 10, 1900. The validity of this will was denied and its probate resisted. An issue was certified by the register to the court of common pleas No. 2 of Allegheny county, in which Anna M. Gfeller was made the plaintiff and Emma Morgenroth and the other plaintiffs in the present action, with possibly one or two exceptions, were made the defendants. The verdict of the jury sustained the validity of the will, and the judgment entered on the verdict was affirmed by this court January 4, 1904. (208 Pa. 48). Miss Gfeller, the proponent of the will, again presented it for probate to the register of wills on' January 29, 1904. The plantiffs in this issue objected to the probate on the ground that a
The genuineness and validity of the alleged will of December 20,1900, are supported principally by the testimony of Emma Morgenroth, nee Robitzer, and her husband, Ed. R. Morgenroth. Mrs. Morgenroth is a daughter of Rosanna Robitzer, who was a daughter of John Christian Lappe by his first marriage. The testimony of Mrs. Morgenroth and her husband is substantially as follows: Emma Robitzer lived with the deceased in Allegheny city, and on the evening of December 20,1900, her fiance, Ed. R. Morgenroth, called to see her. Sometime after he had arrived at the residence of Mr. Lappe, the latter came down stairs and requested them to come up to his room. After the three had entered his room, Mr. Lappe closed the door and told Miss Robitzer and Mr. Morgenroth that he had something he wanted to tell them and enjoined the utmost secrecy upon them in regard to it. Mr. Lappe then drew an envelope from his pocket and took a paper from it which he called his “ testament.” It was a typewritten paper of three pages, fastened at the top and dated with the month and the year. Miss Robitzer procuring a pen and ink, Mr. Morgenroth filled in the day of the month, and Mr. Lappe then signed the paper and the other parties witnessed it. He put the executed will in the envelope which he replaced in his pocket. Miss Robitzer and Morgenroth then returned to the sitting room. The next time Miss Robitzer saw the paper was the first week of the following March (1901), when the deceased brought it to her room. He said he was afraid his boys might find it and he handed it to her with instructions to take care of it. On being told by her that it would not be more secure from the boys than if he had it, he told her to give it to Morgenroth. Subsequently she gave it to Morgenroth in a Wood street cafe, where they
Such in brief is the story told by Mrs. Morgenroth and her husband as to the execution, custody and destruction of the alleged will of December 20,1900. Charles O. Lappe and Martin Lappe, children of the first marriage, testified that they were shown this will by Mrs. Morgenroth and that their father’s signature to it was genuine. The defendants deny the validity of the will and attack it on the grounds of fraud and forgery. For the purpose of contradiction, the defendants, in addition to other evidence, proved the acts and declarations of the decedent during the three or four months immediately prior to his death. This was after the alleged will of December 20 had been delivered to Mrs. Morgenroth and while she and her husband had the custody of it. The admission of this testimony, showing the acts and declarations of the decedent, is the subject of several assignments of error. We do not think the testimony should have been excluded. It was not introduced for the purpose of proving the facts stated in the declarations, but that the decedent made declarations or
The admission of proof of Lappe’s declarations do not conflict with the rule announced in Herster v. Herster, 122 Pa. 239, and Swope v. Donnelly, 190 Pa. 417. In the former case the declarations of the decedent were excluded because they were made several years after the execution of the will and were offered to prove the fact of am due influence but were of
The remaining assignments raise the question of the adequacy of the charge, and suggest that the case was presented “ in the strongest possible light for defendants, without any fair presentation of plaintiffs’ proof.” But it is the practice, and we have held that the trial judge may in his charge express his opinion and make comments on the testimony, witnesses or parties, provided he leave the jury free to decide the case on the evidence. In cases of this character, consuming much time in the trial, the court may in his charge sometimes inadvertently overlook some parts of the evidence or some questions of law, and hence if counsel apprehend insufficiency in the charge in either respect they should present proper requests for instructions, which will direct the court’s attention to the matter. We are not convinced that the learned trial judge in this case committed reversible error in his charge. In submitting the case he said: “ While it takes a week to try it, the principles are plain and simple, but the evidence is mighty hard to handle. That is for you and you will have that trouble. ... You will examine all the evidence, little and big, and I am not going over it. After a week, if I were to go over it, I would probably make mistakes, forget some things, and probably misapprehend others, and might do more harm than good. You have listened to
We think the charge taken as a whole submitted the questions of fact fairly to the determination of the jury. The assignments of error are overruled and the judgment is affirmed.