258 Pa. 542 | Pa. | 1917
Opinion by
This appeal is from a decree of the Orphans’ Court refusing to award an issue in a will contest. John C. Spence, the proponent, is the husband and Euth Frances Spence and Ezra D. Spence are the only children of the alleged testatrix, Hattie V. Spence, late of Warren, Pa., deceased. Mr. and Mrs. Spence were married about 1885 and thereafter resided with her parents at Warren,- where for some years he worked as a machinist; then he worked for. a time in Oil City and for the last twenty years more or less has been employed at his trade in Erie, Pa. However, Mrs. Spence and the children continued to live with her people in Warren until their death some years ago and thereafter she and the children remained in the family home.. Mr. Spence was an industrious man of good habits, and, after his work took him from Warren, contributed to the support of his family and visited them as he had opportunity. There is nothing to support the allegation that there was at any time an estrangement between him and his family, although the relations between him and his mother-in-law were not cordial. The main reason why Mrs. Spence failed to remove with her husband to Oil City and Erie was a mutual desire between her and her parents that she remain with them. Late in the fall of 1913 the son, Ezra, then nineteen years of age, was seriously ill with typhoid fever, and, at his mother’s request, the father returned to Warren and assisted in caring for the son. As he was regaining his health Mrs. Spence was stricken with the same malady, and, according to the testimony of Mr. Spence, realizing its probable fatal termination, requested him to procure paper that a will-might be prepared, which he did and at her dictation wrote for her a will as follows, viz:
“Dec. 15, 1913.
“If this is the fever I have got I will never get over it. If I die, I want to leave to you my husband, John C. Spence. I will to you the property my father left me.
“Ezra has spent a good deal of the money father left me, if he had the property in his hands it would not last him one year. If I die take good care of Ezra for my sake. Take him away from his comrades in Warren for that is his ruin.
“I also give you all the furniture in the house, but attend to my boy for my sake.
“Mbs. Hattie V. Spence.”
Spence further says when he had finished writing the will he gave it to her to read, and that then he was called out of the room to give water to the sick son and on his return found her sitting up in bed in the act of signing the will, and that he did not see it again until three or four days-after her death when he found it in her bureau with other valuables.
They had no nurse, the parents cared for the son,, and, later, the father with some help of the son cared for the mother, until she was removed to the hospital two or three days prior to her death, which occurred December 24, 1913. She left no other will. Ruth was then about twenty-five years old, of dissolute habits, had been from home for several years and her place of abode was unknown to the family. Ezra was dissipated and idle with no serious view of life. In fact, the children were unworthy of their parents. The will apparently included all of Mrs. Spence’s property and was duly probated, from which the children appealed to the Orphans’ Court, and later took this appeal from that court’s refusal to award an issue. Their contention was lack of testamentary capacity, and fraud and undue influence on part of proponent.
The evidence clearly establish, that the signature is genuine and that testatrix, prior to her last sickness, was of sound mind and good business ability. Taking the testimony as a whole it will not sustain a
The evidence establishes no ‘circumstances indicating that the will was procured by fraud or undue influence. There is nothing to indicate that Mr. Spence had or exercised any influence over his wife, except that he was her husband; and, being a near relative, the fact that he wrote the will in which he was sole beneficiary does not cast upon him the burden of proof as it would in case of a stranger: Blume v. Hartman, 115 Pa. 32. Mrs. Spence is presumed to know the contents of the paper signed by her: Vernon v. Kirk, 30 Pa. 218; Dickinson v. Dickinson, 61 Pa. 401; Frew v. Clarke, 80 Pa. 170. That presumption is supported by. proponent’s testimony and is nowhere contradicted. In this respect this case differs from that first cited for there the evidence tended to show that the will was not read to or by the testatrix, or explained to her, before or after its execution, and there the question of her knowledge of the contents of the will was submitted to the jury.
There is evidence that on one occasion Mr. Spence declined to permit a lady friend and her son to see Mrs. Spence, and stated that he was not permitted to do so, while the doctor had given no such instructions. This is denied by Mr. Spence; but if true it is of slight significance. She may have been asleep, or too ill to receive callers. It certainly is not against Mr. Spence that he was very attentive to his family during their serious illness. We have not overlooked the fact- that when recalled as a witness Mr. Spence made some changes in his testimony as at first given; nor of his
A recent leading case upon this subject is Phillips’ Est., 244 Pa. 35.
The decree is affirmed at the cost of appellants.