69 Pa. 177 | Pa. | 1871
This was an issue of devisavit vel non in the Court of Common Pleas on the precept of the register, before whom the copy of a paper-writing, alleged to have been lost, was propounded for probate as the will of John Yerkes, deceased. Ten errors have been assigned. We think that none of them have been sustained except the sixth and seventh. It will be unnecessary to consider the remaining assignments in detail. They present no questions which have not already been decided in McTaggart v. Thompson, 2 Harris 154, and Dean v. Negley, 5 Wright 312.
The plaintiff, however, was entitled to a direct affirmative answer to his third point. It was true, and the jury should have been so instructed, that the fact of the unlawful cohabitation of Catharine Rudy and John Yerkes was not, standing by itself without other evidence, sufficient to justify them in drawing the inference, that undue influence had been used by her to procure the execution of the will in question. However it might have been if the entire property or the bulk of it had been bequeathed or devised to Catharine Rudy, and John Yerkes’s own children disinherited in her favor — which was the state of the case in Dean v. Negley— yet the alleged will in this case was not of that character. John Yerkes undoubtedly believed David to be his own child, whatever the fact was. He always treated him as such, and calls him so in this paper. He was an idiotic, helpless boy — incurably so, beyond all hope of amendment — appealing, therefore, most strongly to every feeling of the heart of the parent to make such provision for the support and comfort of an unfortunate being whom he had been instrumental in bringing into the world. His estate was not large: real and personal it was only $2800; the interest of which, after deducting necessary charges, was not more than was required for this purpose. His other children were grown up, in the full enjoyment of their faculties — married and settled in life, and able to do for themselves. He directed the amount of his estate to be paid into the hands of a guardian to be appointed for his son, and if his son became competent to manage his own affairs one-half to be paid into his own hands, and after his death the balance to be equally divided between grandchildren — the children of his daughter Polly. It was a most reasonable, just and proper will under all the circumstances. Catharine Rudy had no personal interest in it, further than her natural affection for her child might prompt her to desire that some provision should be made for him. If she had brought it about by the influence of argument and persuasion, without the employment of undue means, it would have been unimpeachable on the mere ground of the unlawful relation she bore to the alleged testator. She could derive no interest from the bequest, except so far as it went to relieve her from the obliga
We are of the opinion that the instrument dated August 31st 1869, was not evidence to the jury of revocation of the will now in contest, executed in 1865. It was no doubt rightly admitted when it was offered, objected to and bill of exceptions sealed. It was offered, for all that then appeared, as a valid subsequent will, revoking all prior wills, and of course that in regard to which the issue on trial was awarded. No one can well doubt its admissibility in evidence at that time. But when the plaintiff in rebuttal had produced the record of the former issue, directed by the Register’s Court to try its validity, and the verdict and judgment against that instrument, in which these defendants were the parties -contesting it, it was no longer available for the purpose for which it had been introduced, and the jury should have been so instructed.
It may be freely conceded that admission to probate by the register was not necessary to give effect to the instrument of 1869 as a revocation of that propounded as the will of 1865. Otherwise the question between two wills could never be tried. It would be a race which could first be presented for probate. In the issue on either, the claimants under the other could be admitted to contest; and those under the second could undoubtedly set it up against the first, and the claimants under the first could impeach its validity. The Act of Assembly of April 8th 1833, §§ 13, 14, Pamph. L. 250, provides in effect that no will in writing shall be repealed otherwise than by some other will or codicil in writing, or by other writing declaring such repeal, executed and proved in the same manner as is provided in the case of an original will. There are two modes of revocation here pointed out, besides cancellation, obliteration, &c. First: another subsequent will or codicil duly executed and proved; and second, some other writing declaring the revocation. It is implied that this other writing is not a will, that is, an act of disposition or declaration of what a man intends as to his property after his death. There may be a separate written revocation, not intended to take effect as a will or codicil, which need not therefore be propounded to the register for pro
We conclude, therefore, that the learned judge below erred in submitting to the jury the instrument called the will of 1869 as evidence of the revocation of that of 1865, which was the subject-matter of the issue.
Judgment reversed, and venire faeias de novo awarded.