49 A.2d 392 | Pa. | 1946
Argued October 2, 1946. This is an appeal from a decree of the Orphans' Court of Clarion County dismissing an appeal from the probate of a will and refusing an issue with respect to the testatrix's mental capacity and alleged undue influence practiced upon her. Unfortunately, the court below did not make the relevant and specific findings of fact which the record abundantly warrants and which would have patently justified the lower court's conclusion that the proofs offered by the contestant fell far short of that required of him.
The contestant and appellant is John F. Ross, a son of the testatrix, — Harriette J. Ross. In his petition to the court below he alleged that, at the time of the making of the will, his mother ". . . was not a person of sound mind, capable of disposing by will of her estate" and that her execution of the will ". . . was procured by misrepresentation, fraudulent statements, undue influence, duress and constraint, practiced upon [her] by Rebecca Ross Craft, and Charles C. Ross, Jr., named in the said writing as legatees, . . .", the last named persons being the testatrix's two other children. John, the contestant, is also a legatee to the extent of one-third of the property *114 disposed of by the will. Mrs. Ross died on April 9, 1944, aged seventy-eight years. The will was executed on December 8, 1942.
As the will is properly executed in every particular, there is a presumption of testamentary capacity and lack of undue influence which places upon the contestant the burden of producing compelling evidence in his effort to upset the will:Olshefski's Estate,
As to the testatrix's alleged lack of testamentary capacity, the contestant did not offer a single witness who was either qualified to, or did, testify concerning his mother's mentality at or near the time of the making of her will. The trifling indicia of forgetfulness on the part of Mrs. Ross in her advanced years which some of the contestant's witnesses related afforded no evidence of any impairment of the testatrix's intellect. Indeed, the testimony of one of the witnesses for the contestant in such connection actually depicted the testatrix as a woman of sound reason and strong mentality up until a few months of her death which was subsequent to the execution of the will by more than a year.
What the contestant principally relied upon for proof that Mrs. Ross lacked testamentary capacity were two pieces of documentary evidence both of which were admitted by the trial judge, over objection, in the contestant's case in chief. Neither of the papers furnished any substantive proof of the testatrix's mentality either at the time of the making of the will or at any other time. The documents were competent only for the possible purpose of refuting their authors if the latter testified to or otherwise asserted Mrs. Ross's sound mentality at all times. In no view were the papers proof of the matter *115 which they stated or implied relative to the testatrix's mental condition. Their role will be understood from the following.
Four to five months before the execution of the will, Mrs. Ross's family physician had made an affidavit that she was ". . . physically unable and mentally incompetent to attend any Court or give testimony in any case at any time without serious danger to life . . .". The physician explained that the affidavit was made and used for the purpose of saving Mrs. Ross from appearing as a witness in court in another county where she was one of the parties defendant.1 She was then seventy-six years old and suffering with increasing aggravation from a gynecological condition of long standing which ultimately necessitated an operation. At the hearing below on the appeal petition, the doctor testified for the proponents that Mrs. Ross possessed testamentary capacity at the time she executed her will. Whether the affidavit served to impair the probative value of his testimony was peculiarly a matter for the consideration of the court below as the trier of the facts. Apparently the affidavit was of no discrediting effect; and the court was warranted in ignoring it entirely. It proved absolutely nothing in the will contest: cf. Aggas v. Munnell,
For his charge of fraud and undue influence the contestant relies on the fact that in the year preceding the execution of the will Mrs. Ross, then in advanced years and poor physical health, voluntarily conveyed to her daughter, Rebecca, a property in Cooksburg and to her son, Charles, the family home in Clarion with a division of the furnishings of the home between Rebecca and Charles, Jr., to the extent they desired such. The fact is that the mother was no less concerned for the welfare of John. For a number of years he had been confined in institutions as a weak-minded person. By her will (in addition to confirming in Rebecca and Charles, Jr., title to the two properties theretofore conveyed to them by deed) Mrs. Ross made an equal division of her remaining estate among her three children, Rebecca, Charles, Jr., and John for whom the Citizens Trust Company of Clarion was guardian. In the case of John, the will further provided that if the income from his share was not sufficient for his maintenance, corpus might be used for that purpose in the discretion of the guardian. This direction was purposely similar to the provision made for John by the earlier will of his deceased father, Dr. Charles C. Ross, whose will it was the mother's expressed desire to follow in like testamentary regard.
The contestant's charge of fraud and undue influence is devoid of any substance. Neither Rebecca nor Charles was shown to have the slightest supervision, authority or direction over their mother's business affairs. Nor did they otherwise occupy any position of trust or confidence toward her. There is no basis whatsoever for suggesting, as the appellant does, that Charles stood in a *117
confidential relation to his mother: see Null's Estate,
From what we have said it should be evident that the contestant failed to make out a prima facie case. The lower court's dismissal of the appeal from the probate and its refusal of an issue were therefore proper. It is only where a contestant's proofs raise a substantial dispute as to a material matter of fact, which is not overcome in the mind of the hearing judge by the quantum and character of the proofs adduced by the proponent, that the award of an issue is justified: Doster's Estate,
In the instant case, the undisputed and credible testimony for the proponents showed that Mrs. Ross's will was drafted at her request by Lloyd F. Weaver, Esq., a member of the Clarion County bar. Mr. Weaver testified that the dispositive provisions of the will were in strict accordance with Mrs. Ross's own verbally expressed directions to him at his office on December 7, 1942, where Mrs. Ross, by prior appointment, had come in company with her nurse, Miss Berenic Thompson, for the express purpose of discussing her proposed will which Mr. Weaver was to draft. Miss Thompson, a wholly disinterested witness, corroborated Mr. Weaver in all particulars with respect to what took place at his office concerning Mrs. Ross and the matter of a will. When the will had been drawn Mr. Weaver sent it to Mrs. Ross at her home, and it was there that she, on December 8, 1942, without interference from anyone, executed the will in the presence of Miss Elizabeth Schuette, her housekeeper, and Miss Thompson, the nurse, both of whom, at Mrs. Ross's request, then signed the will as *118 subscribing witnesses. Miss Schuette died after the probate but prior to the hearing in the court below. It was Mr. Weaver's opinion that Mrs. Ross was "amply competent throughout" to make a will. Miss Thompson was of similar opinion. In addition to them, the family doctor testified that Mrs. Ross was mentally competent to make a will at the critical date and several lay witnesses so testified. On the other hand, there is nowhere in the record a direct assertion to contrary effect from anyone.
The efficacy of the testimony for the proponents in the circumstances shown is not hard to perceive. The fact that the will was prepared by an attorney at the testatrix's request and in accordance with her directions without interference from anyone affords an inference that the will was properly made by a person of testamentary capacity: Brennan's Estate,
The decree is affirmed at the appellant's costs.
"I was trying to keep that woman out of any cross-examination that she might have to go through at her age." *119