207 Pa. 284 | Pa. | 1904
Opinion by
Under the issue in this case, the trial court left two questions to the jury:
1. Whether at the time the will was written the testatrix was of sound and disposing mind and memory ? and, 2, whether its execution was procured by duress, fraud, imposition and undue influence ? The jury found a general verdict for the defendants.
The undisputed evidence showed that up to November 26, 1901, Mrs.'Johanna Hennessy, an aged widow, residing at Irvinetown, Warren county, was possessed of testamentary capacity. She had already made two wills, drawn by a neighbor and former justice of the peace, in which she left legacies to an adopted daughter, Mrs. Toomey, and the residue of her estate to a granddaughter, Mrs. Berndt, who lived in Ohio. One of these wills was still in existence. On the date named (November 26, Tuesday) she went by train to Warren, six miles away, to attend to some business, and while there was overcome by cold and exposure and was taken to the house of John K. Masterson and wife, who had long been her intimate friends. She remained at Mr. Masterson’s house eight days, until Wednesday, December 4, when she died. She recovered from the effects of the cold by which she was prostrated when she first came to the Masterson house, but subsequently a gangrenous condition of her hand and arm, incident to old age, developed, and caused her death.
On Thursday, November 28, 1901 (Thanksgiving Day), the alleged will was executed. Mrs. Hennessy could not write, and signed it with her mark in the presence of the subscribing witnesses. The will was drawn by William Sehnur, a reputable attorney of Warren, who also witnessed it. The other witness was the Rev. Joseph W. Sieverding, a Roman Catholic 'priest, who visited the testatrix daily during her illness and administered to her the last sacraments of the church. By this will the house and lot at Irvinetown, where the testatrix resided, were devised to an adopted daughter, Mrs. Toomey, who was also a beneficiary under the prior wills; a bequest of $50.00 for masses was made, and the residue of her estate was given to Mrs. Mary E. Masterson, the friend at whose house sh§ then was, There was no mention of any of her grand
The testimony of the subscribing witnesses was full and clear to the effect that the testatrix was of sound mind, and perfectly able to transact business at the time she made the will. The lawyer who drew the instrument testified ¿hat Mrs. Hennessy talked to him at considerable length, giving him an account of her illness, and of her desire to make a will. She described to him her property, both real and personal, and told him about her grandchildren. During the greater part of his conversation with Mrs. Hennessy no one else was present. In answer to questions, he stated that from the conversation which he had with her, and his observation of her, he thought her as capable of transacting business as anybody he knew of, and that she was possessed of a sound and disposing mind and memory sufficient to make a will.
The attending physician, Dr. Haines, testified in substance that he was called in to see Mrs. Hennessy on Wednesday, the day before Thanksgiving. He saw her also on Friday and subsequently. Both on Wednesday and Friday, the condition of her mind was perfectly rational, so far as he could see. He says : “ In my opinion the state of her mind on Friday, as to her ability to do business, was as good as' any person’s would be at her age, as far as I coüld make out. I considered her perfectly rational and as competent to do business as any woman of her age.”
Several other witnesses also testified to her rational condition and conversation.
The defendants showed the execution of the prior wills. They also showed the friendly relations between testatrix and her grandchildren, and particularly her fondness for Sarah Berndt. Several witnesses testified that Mrs. Hennessy had said that Sarah would get all she had, because she had been good to her mother, Mrs. McMahon, who was Mrs. Hennessy’s only child, and who had suffered a long illness before her death.
But there was no testimony to show either want of testamentary capacity at the time the will was made, or the exercise of any influence upon the testatrix by or on behalf of the residuary legatee, Mrs. Masterson.
The evidence upon the part of the defendants di4 not upon
In a recent case, in.which an order refusing to grant an issue was affirmed on the opinion of Hanna, P. J., it was said, after considering the testimony of witnesses called on behalf of the contestants : “ Opposed to this is the testimony of those who were actually present at the drafting of the will, its engrossing and submission to testator, heard his assent to its provisions, saw him affix his signature thereto, listened to his remarks and conversation and had cognizance of his mental and physical condition, both previous to, at the time of the execution of the will, and subsequent thereto. Such testimony is entitled to far greater belief and relianceTasker’s Estate, 205 Pa. 455.
The jury in this case should have been instructed to find for the will. It is not necessary to consider the assignments of error in detail. The judgment is reversed, the issue is directed to be set aside, and the costs are to be paid by the appellees.