364 Pa. 488 | Pa. | 1950
Opinion by
After an extended hearing before Register of Wills Boland (now a Judge in the Philadelphia Orphans’ Court), an issue devisavit vel non was granted to determine (a) testamentary capacity of decedent and (b) existence of undue influence. No appeal was taken from such decree. Cf. Act of June 7, 1917, P. L. 415, section 21 (a), 20 PS 2005 et seq. and Lare Will, 352 Pa. 323, 42 A. 2d 801. A. jury thereafter rendered a verdict against the will. Because of trial errors a new trial was granted and upon a re-trial another jury again found against the will.
Sealie Wilson, the decedent, and most of the witnesses were Negroes. Many of them, including decedent, were persons of limited education. She possessed an estate of approximately $7,000. Decedent’s son was her sole heir. The son had three children. The questioned paper was. purported to have been signed April 10,1946. Decedent died July 15, 1946. For some months prior to the death decedent was bedridden and was extremely ill. According to the attending physician she suffered from heart trouble, high blood pressure, edema (i. e. tumor or dropsy), sweating of the legs, enlargement of the liver and other complications. While there is testimony that decedent possessed testamentary capacity, there is also testimony that at times she was delirious, had lapses of memory, was not always clear and coherent, and did not possess testamentary capacity.
The factual issue may be thus stated: Proponent maintains that decedent’s son, an alcoholic, neglected his mother in her last illness; decedent’s brother, the proponent, at decedent’s urgent request, came from his home in Florida and nursed and cared for her until her death. (Proponent had always resided in Florida; his
In reviewing this record Ave experienced difficulty in searching out the pertinent testimony in this poorly tried case. Counsel on both sides should have omitted their unnecessary belligerent attitude and spent more time and attention in intelligently and efficiently developing the facts of the case.
This statement is conceded to be false. Neither subscribing witness saw decedent sign her name nor did the subscribing witnesses sign at the request of decedent and in the presence of each other. Subscribing witness Thomas Brown testified that he did not see decedent sign; that he came in the decedent’s room at the request of proponent; that the scrivener Livingston was there and he requested the witness to sign; that decedent was lying down in her bed; that decedent was not clear and coherent. Subscribing witness Juanita Best, while at first uncertain, finally declared that it was the scrivener who requested her to sign as a witness ; the will was read by the witness but it was not read to decedent; that as far as the witness knew decedent was of “sound and disposing mind”. While both subscribing witnesses testified that they did not sign in the presence of each other, neither could remember whether proponent was in the room when they did sign. Mr. Livingston, the lawyer-scrivener, testified that the proponent came to him and gave him directions to prepare the will; that in accordance with such directions he prepared the will and took it to the decedent at her
We agree with the opinion of the learned court below that standing alone perhaps testamentary incapacity has not been sufficiently established. We observe, however, that no witness testified that decedent possessed a full knowledge of the property she possessed, an intelligent perception and understanding of the disposition she desired to make of it and of the persons and objects she desired to be the recipients of her bounty: Olshefski’s Estate, 337 Pa. 420, 11 A. 2d 487; Ash Will, 351 Pa. 317, 41 A. 2d 620.
But there was ample evidence to support the jury’s verdict against the will on the ground of undue influence. Mr. Justice Horace Stern observed in Freed’s Estate, 327 Pa. 572, 577, 195 A. 22: “While undue influence is subtle, intangible and merely psychic in its effects, so that its existence cannot be detected, weighed or measured by instruments of science, nevertheless human
Where evidence may not be sufficient to establish testamentary incapacity, but does show bodily infirmity and weakened mentality, a presumption of undue influence arises where a person standing in a confidential relation is benefited by a will which he has been instrumental in having executed: Blume v. Hartman, 115 Pa. 32, 8 A. 219; Miller’s Estate, 179 Pa. 645, 36 A. 139; 187 Pa. 572, 41 A. 277; Robinson v. Robinson, 203 Pa. 400, 53 A. 253; Goss’s Estate, 274 Pa. 278, 118 A. 26. Cf. Schwartz’s Estate, 340 Pa. 170, 16 A. 2d 374; Hollinger Will, 351 Pa. 364, 41 A. 2d 554; Quein Will, 361 Pa. 133, 62 A. 2d 909. A confidential relation exists whenever the relative position of the parties is such that the one has power and means to take advantage of, or exercise undue influnce over, the other: Stewart Will, 354 Pa. 288, 47 A. 2d 204; Dichter Will, 354 Pa. 444, 47 A. 2d 691, and cases therein cited.
At the time the questioned will was signed, decedent was weak in body and mind. Within the short period of one month from the date of his arrival in Philadelphia, on March 2, 1946, proponent not only became the chief beneficiary by the instrument dated April 2,1946, which he instructed the scrivener to prepare, but on April 10, 1946, eight days thereafter, proponent procured the execution of the will now in question, which increased his share. Proponent also caused his name to be added to decedent’s bank account. He became the designated beneficiary in decedent’s life insurance policy and those of the son. Proponent had sole care and custody of his sick sister. A confidential relation was clearly shown to exist. Proponent failed to meet and overcome presumption of undue influence.
There are many circumstances indicating actual fraud. Bearing in mind the weakened mental and physical condition of decedent, Mr. Livingston, the scrivener,
Thus the lawyer testified, in effect, that he explained to his ill and illiterate client that while the form was an absolute bequest to proponent, yet in substance it constituted a trust for her son and her grandchildren. The proponent himself testified that he wanted the will changed to pass to him absolutely because he did not “want the property so complicated” (i. e. in trust for the son and grandchildren). He testified: “Q. Didn’t you so testify that you did not want the property so complicated to leave it in trust with you for her son and grandchildren? You did not want it that way? A. I didn’t tell Mr. Livingston I didn’t want it that way. Q. You did not want it that way? A. I didn’t want it that way. Q. You wanted it left to you directly, and you would carry out the trust; is that right? A. That’s right.” We neither decide nor infer that a trust may be established by parol where the devise or bequest is absolute in written terms. But under these circumstances, it was for the jury to determine Avhether decedent comprehended the effect of what she was doing.
There is also testimony, considered in connection with the foregoing circumstances, which collaterally indicates the existence of actual fraud. Not content with procuring two wills in his favor, and causing decedent’s insurance to be transferred to him as beneficiary, and securing joint control over decedent’s bank account, proponent demonstrated his acquisitiveness by causing three insurance policies on the son’s life to be transferred
Ample evidence exists to support the verdict of the jury.
Judgment and decree affirmed at the cost of appellant.