213 Pa. 526 | Pa. | 1906
Opinion by
In this case the register of wills of Allegheny county sent his precept to the court below commanding it to frame an issue to determine the following questions of fact: 1. Did James Tolhurst on or about the — day of March, A. D. 1900, sign a paper writing as and for his last will and testament, substantially in the form of exhibit “ A,” hereto attached ? 2. Did the
On the trial of the issue framed in pursuance of the precept, the learned judge, being of opinion that the evidence was sufficient, submitted both questions to the jury who answered both in the affirmative. Judgment was entered ón the verdict and the defendants have appealed.
It appears that James Tolhurst lived for many years in the seventeenth ward of the city of Pittsburg and died there November 19, 1901, a widower and without children. His nearest relatives were cousins. At his wife’s death in 1897 or 1898, Eliza Miehell, the plaintiff, and her husband removed to Tolhurst’s home and she remained there until a short time prior to his death, when she removed to another house. During the occupancy of his house by the Michells, Tolhurst remained-with them, paying board to Mrs. Miehell and she paying him rent for the premises. Joseph Mitchell, named as executor in the alleged will, was the alderman of the ward in which the parties resided. He wrote at least four wills for Tolhurst and probably more. The evidence shows that he wrote and kept in his possession in his office the wills of many people of that community. He died August 11, 1903. Letters of administration were granted on Tolhurst’s estate and at the audit of the administrator’s account before the orphans’ court of Allegheny county in March, 1903, Mrs. Miehell presented for allowance a claim against the estate for $1,001.60 for services in attending Mrs. Tolhurst in her last illness, for boarding Tolhurst, etc. The claim was rejected by the auditing judge, whereupon, in May, 1903, Mrs. Miehell presented her petition to the. orphans’ court praying for a rehearing, in which she avers that “she has come into possession of after-discovered evidence which she is informed and believes is very important in-substantiating her claim and to show that the decedent,
On January 21, 1905, Mrs. Michell presented her petition to the register of wills of Allegheny county asking for the probate of an alleged will of James Tolhurst, a copy of which was thereto attached, and averring that the will was destroyed during the lifetime of Tolhurst by Joseph Mitchell, “ but not in the presence of the testator and by his express direction.” The defendants, the heirs-at-law of Tolhurst, objected to the probate of the will, alleging “that the writing was never executed by the said James Tolhurst, or if it was that the same was revoked by him during his lifetime.” The register then certified to the common pleas the issue referred to above.
To justify the verdict, the jury was required to find, on sufficient evidence, (1) the due execution of the alleged will by the testator; (2) its contents substantially as set forth in the copy attached to the precept as exhibit “ A,” and (3) that the instrument was unrevoked at the death of the testator.
1. The sixth section of the Act of April 8, 1833, P. L. 249, 2 Purd. 2102, provides that in all cases a will “ shall be proved by the oaths or affirmations of two or more competent witnesses, otherwise such will shall be of no effect.” And the contents of a lost will or of a will which has been destroyed or canceled without the consent of the testator cannot be shown until its execution has been proved by the testimony of two witnesses: Hock v. Hock, 6 S. & R. 47; Foster’s Appeal, 87 Pa. 67; Derr v. Greenawalt, 76 Pa. 239 ; Combs’s Appeal, 105 Pa. 155; Simrell’s Estate, 154 Pa. 604; McKenna v. McMichael, 189 Pa. 440. Has the plaintiff on whom the burden of proof rests shown by two witnesses the execution of the alleged will? Tula Naser and Charles A. Stewart, stenographer and clerk respectively in the office of Alderman Mitchell, are the witnesses
' From this testimony it is apparent, we think, that Stewart fails to identify exhibit “.A ” as a copy of the will which he attested with his signature. He was not asked that question, it will be observed, nor did he testify that the paper referred to was a copy of the will which he witnessed. He says the will he attested was written and signed after Tolhurst left the hospital, but he does not fix the year and is uncertain as to whether it ivas in the spring, summer or fall. Miss Nasor testifies that the original or exhibit “ A ” was written and signed immediately after Tolhurst left the hospital, but is this the will which Stewart testifies he attested as a subscribing witness ? In exhibit “ A ” the day of the month is blank and the paper being a copy and not the original, Stewart did not and could not identify his signature from the writing nor the paper from its date. Neither does he identify exhibit “ A ” by its contents as being a copy of the paper ho witnessed. He testifies he did not know who was appointed executor in the will. He did not read the will and does not say he heard the will dictated or read. The most he does say is that he knew Mitchell “was dictating a will of James Tolhurst to Miss Naser.” He does not testify that Mrs. Michell was the beneficiary in the will he witnessed, but that he “ heard him (Tolhurst) say he wanted to leave it to Mrs. Michell.” It therefore conclusively appears that Stewart did not know the contents of. the paper which he says he signed as a witness and, as the copy of the paper is not dated and the original had been destroyed, it necessarily follows that he could not identify exhibit “ A ” as a copy of the will he saw Tolhurst sign and which he attested as a subscribing witness. Moreover, his testimony not only fails to identify exhibit “A” as a copy of the will he witnessed but tends to show the contrary. In that paper it will be observed that Mrs. Michell is the sole devisee and legatee of “ all my estate, real, personal and mixed absolute.” Stewart testifies, however, that in the will he witnessed Mrs. Michell was the “ sole heir except 1200, he (Tolhurst) said, for a niece, I mind that; I know there was $200 mentioned for somebody; I don’t know who it was for.” This testimony conclusively shows that the will which Stewart wit
Failure to identify the will produced defeated its probate in Hock v. Hock, 6 S. & R. 47. In that case Gibson, J., delivering the opinion, says: “ Taking for granted, then, that Charrington’s evidence was sufficient on his part, was there complete proof by Rodernel, and had his evidence any necessary connection with the supposed will ? ” Charrington drew the will and suggested to the testator that he get Rodernel also to witness it. The testator said Rodernel was busy with his hay and he would postpone seeing him for a few days. Rodernel testified that the testator came to him the same summer, where he was making hay, and said Charrington had drawn his will and requested witness to go with him and sign it as a witness. Rodernel said it did not suit him to go and the testator replied that it would do at another time. Commenting on this testimony, Justice Gibson says : “This is all the material evidence. The defect in it is, there is nothing to show that the declarations of the testator referred to the will produced. Charrington may, for anything that appears, have drawn more than one will. Take it, that he swears that he drew but one (and without this, the declarations of the testator can in no way be connected with the supposed will), still that part of the case would depend on the evidence of but one witness. Strike out Charrington’s evidence and how will the case stand? . . . . Nor should the case, as contended, have been left to the jury to enable them to draw possible inferences and conclusions from facts indubitably proved; the jury would have, doubtless, believed the whole matter on the credit of Charrington alone ; but where there is not such proof as the law exacts, the court is bound to direct the jury, be their belief what it may, to find against the party failing. If the testator, in his conversation with Rodernel, had mentioned the substance of the contents of his will; or if it had been shown to have been found among his papers'at his death, there would have been at least a circumstance to leave to the jury for the purpose of connecting his declarations with the paper in question; but, as the evidence stood, there was nothing.” This case is followed and approved in Derr v. Greenawalt, 76 Pa. 239.
The language of the court in the Hock case is very apposite
The contents of the alleged will were not shown by clear and satisfactory evidence. The copy furnished by Miss Naser and attached to the pleadings shows that the will was made in March, 1900, but she being interrogated as to the date testified that she would not say that Tolhurst signed it in March nor in the year 1900. The most she would say was that he signed it after he came out of the hospital. She testifies that the writing was destroyed about a week or ten days before Tolhurst died in November, 1901. In February, 1905, more than three years after she could have seen the paper, she says she went to the office of plaintiff’s counsel and gave him the contents of tho will as it appears in the copy attached to the pleadings. She had no data or written memoranda of the contents of the will, nor has she disclosed any reason why she should charge her memory with the different provisions of the will. She testified that, as stenographer, she wrote many wills for Alderman Mitchell, and it does not appear that in another single instance she can recall the contents- of the instrument. She says she used the same form in writing all the wills, and assigns that as a reason why, after such great lapse of time, she can give from memory the contents of Tolhurst’s will. But that reason is by no means satisfactory. That might do as to the beginning and conclusion of the will. She does not claim that she had a written form for the wills she wrote and that this copy, with the necessary changes, was taken from it. The copy, if she is believed, was made from the form carried in her mind. But it is manifest that the second and third paragraphs of the paper were not taken from any established form. They
Aside from these discrediting facts, Miss Naser is contradicted by the testimony of witnesses as to other material points in the case. She is not corroborated by a single witness as to the alleged contents of the will. We do not overlook the testimony of the plaintiff’s witnesses who testified that Tolhurst told them that Mrs. Michell was the beneficiary in his wills. That is not sufficient proof, without more, of the contents of the will in question, which was not specifically identified by any other witness than Miss Naser.
Assuming the existence of the will to have been established by the plaintiff, we are not convinced that the evidence was sufficiently clear and satisfactory to overcome the presumption that it was destroyed by the testator animo revocandi, supported, as it was, by the positive and direct testimony of the defendants’ witnesses. In such cases, the evidence must be positive and sufficient to overcome both the presumption of revocation by the testator and the presumption of innocence on the part of a third person charged with destroying the will. 23 Am. & Eng. Ency. of Law (2d ed.), 147. The contention of the plaintiff is that Tolhurst called at Mitchell’s office a week or ten days prior to- his death and said he desired to make some changes in his will, which had remained in Mitchell’s possession, and requested him to make a new will embodying the proposed changes; that the stenographer prepared another will but Tolhurst said he would call again and sign it and left the office, whereupon Mitchell tore the signature off the will and directed Miss Naser to destroy it, she protesting at the time against the destruction. This, in substance, is the testimony of Miss Naser. Stewart was called in corroboration. Immediately following that part of his testimony quoted above, he was interrogated as to his knowledge of the destruction of the will.
The presumption is that Tolhurst destroyed the will with the intention of revoking it. In aid of this presumption, the defendants introduced the testimony of Joseph Mitchell, for many years an alderman in the city of Pittsburg, and who, it is admitted, prepared the will and was its custodian. His testimony is direct and positive. He says that he prepared half a dozen wills for Tolhurst and that not more than a month or two before Lis death Tolhurst ordered him to destroy all of them, which he did at the same time in Tolhurst’s presence. He further testifies that Tolhurst made no later will and left no writings in his possession. This testimony was given by Mitchell when he was called by Mrs. Michell as a witness to establish her claim against Tolhurst’s estate in the orphans’ court of Allegheny county. England, another of defendants’ witnesses, testifies that, Mitchell having informed him prior to
Having carefully read and considered the evidence in the case, we are all of opinion that it was not sufficient to justify the court in submitting it to the jury on either of the questions presented for their determination, and that, therefore, the court should have affirmed the defendants’ point and withdrawn the case from the jury.
The judgment is reversed, and the court below is directed to enter judgment in favor of the defendants.