265 Pa. 315 | Pa. | 1919
Opinion by
The appellant urges that an issue d. v. n. must be awarded, because the confidential relation existing be
Joseph Miller died December 17, 1916. His nearest relatives were an adopted daughter and a brother and sister. At the time of his death, he was in his seventy-seventh year. On August 31, 1916, he was stricken with paralysis, which resulted in his death. Dr. Kyle, his physician, in response to a call, a short time before this illness, met Mr. Miller in the latter’s yard, and was requested to write the will. He then made a note of the testator’s instructions on some prescription blanks. Later the Avill was inartistically and inaccurately drawn by the doctor, signed by the testator making his mark, and attested by two subscribing witnesses. The precise time this was done does not definitely appear. In it he gave to his brother and sister each five dollars, and the rest of the property to his executor, Dr. Kyle, in trust for
On the second branch of the case, relating to undue influence, the court will consider all the circumstances entering into the life of the deceased at or about the time of the acts complained of as they relate to the duties of and association with his physician. From such life and association, it will endeavor to find, from the conduct of both, if there is any ground for belief that improper motives had actuated the advisor. The patient is unconsciously subjected to a feeling of dependency on his physician ; his reluctance to make any change, and his desire to cause the doctor to exert extraordinary effort in his behalf, may be seized upon, by one whose professional honor is at low ebb, to create a condition of undue influence to effect a testamentary disposition of property. Evidence of his treatment and conduct, as well as that of the patient, is important in determining whether the testator was easily susceptible to flattery, persuasion or influence. The mere denial of the physician is not enough. But the entire atmosphere of this case is devoid of any attempt on the part of the physician to exercise control, other than in a professional way, over the decedent. There was not the slightest attempt to show the doctor did anything outside of the ordinary work of a physician promptly attended to; nor was there evidence that those in attendance attempted to influence the testator’s mind. It does appear that he was determined to give his property to those who had shown some attention and affection for him during the later period of his life.
The assignments of error are overruled and the decree of the court below is affirmed at the cost of the appellant.