201 Pa. 477 | Pa. | 1902
Opinion by
William Baugh, the testator, was a native of Ireland, sixty-nine years of age ; he had come to this country when a young man, where, by industry and thrift he had accumulated an estate to the value of about $80,000; he had been married but had been divorced for many years, and had no children ; his next of kin were two nephews and a niece, these appellees ; the appellant Rev. Philip McEnroe is a second cousin of testator. Testator resided all his American life at Philadelphia. He was a Catholic in religion and lived within the bounds of St. Mary’s parish, Philadelphia, but having taken offense in some dispute with the priest in charge, seems to have given very little attention to religious duties for some years before his death. All his life, previous to his last illness he was in good health physically and mentally. In the spring of 1899, he fell sick of what was first supposed to be rheumatism and went to Atlantic City hoping to be relieved, but getting no better his physician recommended country air; he then removed to Media, Delaware county, and became a boarder at the Charter House hotel in that town about the middle of August, 1899. He called in Dr. Fronefield of that place as his physician, who soon pronounced his disease cancer of the stomach and that he was rapidly failing. On his being informed of his serious condition he sent a request to his cousin, Father McEnroe, who lived at Bethlehem, to visit him, which request the cousin obeyed and called on him August 18, following; the same day McEnroe returned home. The relations between testator and this cousin were of a very friendly character; they were
It will be noticed, that testator gives nothing to the two nephews and but $5,000 to the niece, while he gives to the cousin McEnroe, approximately, $50,000. Of course; the nephews and. niece were dissatisfied and instituted this contest. On a preliminary hearing before the orphans’ court an issue was awarded
1. Whether at the time he made his will the testator was of sound mind ?
2. Whether the will was procured by undue influence on the part of Rev. Philip McEnroe and other persons ?
3. Whether the writing purporting to be the will of the testator was his will ?
As to the first and third interrogations, there was practically no evidence bearing upon them. Testator was unquestionably, of sound and disposing mind when he made the will and he unquestionably intended to sign and in strict conformity with the statute did publish the writing for his last will and testament. The issue turned alone on the second interrogatory. Was the will procured by the undue influence of Philip McEnroe ?
In our rulings as to what constitutes undue influence by one who advised or drew the will and is a large beneficiary under it, we have followed pretty closely Boyd v. Boyd, 66 Pa. 283, and that cáse commends and adopts as the law the text of Redfield on Wills, 529; it speaks thus : “ Undoubtedly, if the counsel for an old man, whose mental faculties are impaired though not destroyed by advanced age, should draw for him a will, giving to himself the bulk of his estate, or a very considerable part of it, it would not be enough to show the formal execution of the paper in the presence of two subscribing witnesses called in for that purpose.” And further says Judge Redfield : l'‘ The existence of the fiduciary relation does not annul the testamentary act in favor of the attorney by his client; but such fact calls for watchfulness lest some improper influence may have been exercised. There should be very clear evidence of mental capacity and proof independent of the factum, that the mind free and unbiased accompanied the act.” In this ease, for the purpose of review, we assume with the court below, that the relation between the testator and his cousin was a confidential one closely allied to that of counsel and client, though that fact is not altogether clear. The cousin was a priest of the Roman Catholic church, and testator was a member of that church; but they lived in wholly different parishes ; there is no evidence that testator was ever
But it is argued, that under the law, the presumption of undue influence still exists; that the beneficiary must go further, than merely showing, that a man of sound mind made a will properly attested, in his favor. What could he show more
We are all of opinion, that this verdict has no evidence to sustain it and ought to be set aside. The judgment is reversed and issue dismissed.