Rhoads' Estate, Appeal, No. 360

Appeal, No. 360 | Pa. | May 12, 1913

Opinion by

Mr. Justice Mestrezat,

The law applicable to this case has recently been discussed and determined in Michell v. Low, 213 Pa. 526" court="Pa." date_filed="1906-01-02" href="https://app.midpage.ai/document/michell-v-low-6248311?utm_source=webapp" opinion_id="6248311">213 Pa. 526. The learned judge of the Orphans’ Court has so clearly demonstrated the correctness of his conclusion in an exhaustive opinion dealing with the facts and the law that a lengthy discussion of the questions raised by the assignments of error is unnecessary.

It was incumbent on the appellant to establish the due execution of the will, its contents substantially as set forth in the alleged reproduction, and that it was unrevoked at the decedent’s death. The sixth section of the Act of April 8, 1833, P. L. 249, 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.” Each of the witnesses must separately depose to all facts necessary to complete the chain of evidence: Hock v. Hock, 6 S. & R. 47, and the execution of the will must be proved by the testimony of two witnesses before its contents can be proved.

The appellant failed to meet these essential requisites of her case. Horning and Saylor were the two witnesses offered to prove the execution of the will. Saylor’s testimony did not show that he witnessed the execution of the will offered for probate. His testimony.is correctly summarized in the opinion of the court below, and it is manifestly insufficient to prove that the will he witnessed is the will produced by appellant. According to his testimony, Horning asked him to go to Mrs. Rhoads’ house and witness a will, that when they arrived at the house he was introduced to Mrs. Rhoads whom he had never met before, that after she and Horning spoke a few words she asked Saylor to be a witness to the will, that Horning produced the will from his pocket enclosed in an envelope and after she signed it Saylor and Horning witnessed it and Horning returned it to the envelope which he sealed. Saylor witnessed the will when he was about seventeen years of age and about twelve years before he testified. He testified that he did not know the contents of the will he witnessed nor the number of sheets of paper it was written on.

It is apparent that Saylor could not and did not testify that he witnessed the will produced by the appellant. He did not hear the will read, and was entirely ignorant of its contents, and hence there is nothing by which he could identify it as the will offered for probate. It had been destroyed and hence he could not identify it by his signature. The most that can be said of Saylor’s testimony is that it shows he and Horning witnessed a will executed by Mrs. Rhoads. It does not show that they witnessed the will produced for probate. There is nothing in his testimony that identifies the will produced by appellant as the will he saw Mrs. Rhoads sign. He has no knowledge of what became of the will he signed after Horning put it in his pocket. So far as he knows that will is still in existence. He does not know that it has been destroyed. It may yet turn up with an entirely different disposition of the decedent’s estate from that made in the will in controversy. It was essential to the appellant’s case that she met the burden imposed on her by proving the due execution of the will she offered for probate. Until she made such proof, the question of the sufficiency of the proof of the contents of the will executed by Mrs. Rhoads did not arise.

The decree is affirmed.