Opinion
November 21, 1949.
January 5, 1950.
Wills — Execution — Testamentary capacity — Undue influence — Evidence.
In a will contest, it was Held that the contestants had failed to sustain the burden of establishing that the decedent lacked testamentary capacity or that the will was the result of undue influence.
Argued November 21, 1949. Before MAXEY, C. J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES, JJ.
Appeal, No. 144, Jan. T., 1949, from decree of Orphans' Court of Philadelphia County, 1948, No. 1323, in Estate of Antonio De Maio, Deceased. Decree affirmed.
Appeal from probate of will.
The facts are stated in the opinion by KLEIN, J., of the court below, SINKLER, P. J., KLEIN, BOLGER, LADNER AND HUNTER, JJ., as follows:
Antonio De Maio, the testator, died in 1947, leaving a will made eight years prior thereto. Five children survived the testator. Under the provisions of the will, three of these children receive legacies of $1.00 each, and the remainder of his estate is divided equally between the other two, a son, Gus De Maio, and a daughter, Rose Curcio.
An appeal was taken by the disappointed children, which has resulted in as sordid and vicious a controversy as has been before this court for many years. The learned Hearing Judge, after a full and complete hearing at which many witnesses were heard for both sides, dismissed the appeal. We are all in agreement with this action.
The proper execution of the will was established by four respectable, disinterested witnesses. A presumption of testamentary capacity and lack of undue influence arose. The burden therefore fell upon the contestants to adduce compelling evidence to invalidate the will, since the law favors its validity: Ross Will, 355 Pa. 112 (1946); Olshefski's Estate, 337 Pa. 420 (1940). In our opinion, the contesting children have failed to meet this burden.
The conduct of the members of this family has been most disgraceful and unseemly. The contestants blackened their father's name and attempted to stigmatize him as a vulgar, coarse drunkard. The proponents were equally vehement in vilifying the contestants. However, an analysis of the contestants' testimony, if believed — and much of it is patently incredible — would do little more than establish that the decedent was addicted to excessive drinking. This is not sufficient to invalidate his will, as it was established to the satisfaction of the Hearing Judge that the decedent was not under the influence of liquor when the will was executed. See Kish v. Bakaysa, et al., 330 Pa. 533 (1938). Furthermore, the record is completely bare of any credible testimony upon which a finding could be based that the will was obtained as the result of the exercise of undue influence by the proponents or any other persons.
We have some doubt as to the correctness of the ruling excluding the testimony of Anna (Mooney) De Maio. She claimed to be the common-law wife of Gus De Maio, one of the two children to whom the testator left the residue of his estate. Gus De Maio, the alleged husband, vigorously denied that Anna was his wife. We therefore have the anomalous situation of a woman being barred from testifying against the interest of a man on the ground that she is his wife in the face of his denial of the relationship.
It is not necessary for us, however, to pass on this question as the Hearing Judge has stated in his opinion that even if her testimony were admissible and given full weight, his opinion in the matter would not be altered, as he seriously doubted her veracity. Her testimony with respect to the events which took place on the day the will was executed was so improbable and unlikely, and so obviously prompted by malice and spite, that no reasonable person could accept it in preference to the testimony of proponents' reputable, disinterested witnesses.
Nothing can be found in the circumstances under which this will was executed to arouse any suspicion or doubt in any fair-minded person. On the contrary, the manner in which the will was prepared and executed is so natural and probable as to leave little question as to its validity. The decedent was an illiterate Italian, who, retired from a fruit business, which he conducted, to live on the income he was receiving from some properties he owned. In 1939, eight years before he died, he requested the real estate agents who handled his business to prepare a will for him and furnished them with the information necessary to prepare it. He returned to the office several days later and signed it in the presence of the two members of the real estate firm. Two disinterested persons, who chanced to be in the office, acted as subscribing witnesses. The testimony of these four witnesses was so frank and candid that the Hearing Judge was fully justified in accepting it at face value.
The fact that the testator preferred two of his five children over the other three raises no presumption of lack of testamentary capacity or undue influence. See Cookson's Estate, 325 Pa. 81 (1937). His son, Gus, lived with him under the same roof for many years and was a natural object of his bounty, and his relationship to his daughter, Rose, was manifestly closer and friendlier than that of the children he disinherited.
The medical testimony offered in behalf of the contestants lent little support to their contentions. Dr. Saul Goldstein, an osteopath, who is family physician for one of the contestants, treated the decedent once, on February 10, 1938, when he was suffering from pleurisy. He stated he found the decedent to be also suffering from hypertensive cardiac vascular disease. He did not see the decedent again until about fifteen minutes before he died in 1947. The other physician, Dr. Louis Kaplan, a specialist in psychiatry, who had never seen the decedent, expressed his opinion as to the decedent's testamentary capacity in answer to a hypothetical question put to him. The testimony of these two physicians is obviously of little or no value in view of the testimony of the witnesses who were present when the Will was executed.
In Cookson's Estate, 325 Pa. 81 (1937), The late Chief Justice KEPHART said, at p. 88: ". . . expert medical opinions are of little weight when based upon insufficient facts or an erroneous conception of testamentary capacity, and should be entirely disregarded when contrary to established facts revealing mental capacity. Furthermore such opinions are of very doubtful value where they are purely theoretical in character, and the physician is ignorant of the actual facts upholding or negativing the existence of testamentary capacity." See also Sturgeon Will, 357 Pa. 75 (1947); Mohler's Estate, 343 Pa. 299 (1941); Phillips's Estate, 299 Pa. 415 (1930); Guarantee Trust Safe Deposit Co. v. Heidenreich et al., 290 Pa. 249 (1927).
Counsel for the parties in interest, all of whom are sui juris, entered into a stipulation agreeing that "in the event that the Hearing Judge determines that an Issue Devisavit Vel Non shall be awarded, the said issue may be determined forthwith by the Judge without a jury, sitting as Chancellor." The parties agreed, further, to be bound by the determination of the Chancellor, reserving the right of exception and appeal. By virtue of this stipulation, the Hearing Judge was sitting not only to preliminarily determine whether there was a substantial dispute on which to base an issue, but actually was constituted the ultimate trier of the facts. The case therefore resolves itself into one in which the fact findings, based on credibility of witnesses who appeared personally before the Chancellor, must be accepted by the court en banc: Roberts Estate, 350 Pa. 467, 471 (1944).
The exceptions are therefore all dismissed and the opinion of the Hearing Judge affirmed.
Contestants appealed.
John W. Bohlen, with him Philip S. Polis and McBride, Lipschitz, Woolston, Berger Bohlen, for appellants.
Howard E. Stern, with him Milton C. Sharp and Taylor Stern, for appellees.
The decree is affirmed on the able opinion of Judge KLEIN for the learned court below. Costs to be paid by appellant.