Opinion
March 24, 1944.
April 10, 1944.
Orphans' Court — Practice — Jurisdiction — Issue d. v. n. — Necessary parties.
1. Where the heirs at law of a decedent are not voluntarily parties to an issue devisavit vel non, or have not been brought in by citation, the orphans' court has no jurisdiction to settle finally the validity of the will against such of the heirs as are not parties to the proceedings. [217]
2. The failure to join necessary parties to a will contest, which is decided against the contestant because of lack of evidence to raise an issue d. v. n., does not warrant a reversal on an appeal by the contestant. [217]
Wills — Execution — Testamentary capacity — Undue influence — Fraud — Orphans' Court — Practice — Issue d. v. n. — Appellate review.
3. A decree, refusing a motion for an issue d. v. n. and directing the probate of a will on the ground that there was not sufficient evidence to require submission to the jury of issues involving the mental capacity of the testatrix and whether or not fraud, duress, and undue influence had been practiced upon her, was affirmed. [213-17]
Argued March 24, 1944.
Before MAXEY, C. J., DREW, LINN, STERN, PATTERSON, STEARNE and HUGHES, JJ.
Appeal, No. 44, March T., 1944, from decree of O. C., Allegheny Co., 1942, No. 11484, in Estate of Mattie Thomas, deceased. Decree affirmed.
Proceeding upon caveat filed against probate of will.
The facts are stated in the opinion by TRIMBLE, P. J., of the court below, TRIMBLE, P. J., MITCHELL and MILHOLLAND, JJ., as follows:
Mattie Thomas signed a testamentary writing dated July 7, 1942, offered in evidence as her Last Will and Testament. She died August 20, 1942, and on August 22, 1942, a Caveat was filed against the grant of letters and the probate of the will. The record of the case was certified by the Register of Wills of Allegheny County on November 10, 1942, to the Orphans' Court for the trial of the issue. No pleadings were filed in the Register's Office or in the Orphans' Court and the case is now being disposed of on the Caveat.
This method of proceeding leaves the issues undefined but here it is not difficult to determine what they are. There are three questions involved: (1) Did she sign the will? (2) Was she of sound and disposing mind and memory at that time? (3) Was she deceived into signing the testamentary writing under the belief that it was a power of attorney giving her brother-in-law the power to transact business for her when she was unable to perform for herself?
Mattie Thomas was about seventy-nine years of age and was much debilitated on July 7, 1942, so much so, in fact, that she was confined to her bed and physically helpless. The writing was prepared by Mr. Snyder, her brother-in-law, who was married to her sister, Margaret. There could be no conclusion that Snyder was her confidential agent at any time. He performed some clerical work for her, such as paying bills by check signed by her and depositing her money in banks, all under her direction. Wetzel v. Edwards, 340 Pa. 121, 124 (1940), was similar. If any person was confidential to Mrs. Thomas it was her sister who is her sole legatee. Unknown to Mrs. Snyder she had been constituted in 1929 as attorney-in-fact to have access at any time to Mrs. Thomas' safe deposit box. At one time Mrs. Thomas wanted to see what property she had in her safe deposit box. She delegated her brother-in-law to go to the bank and bring the valuables to her, which he did, and afterwards returned them to the bank.
Mrs. Thomas had been divorced in her lifetime, on her libel, for some cause undisclosed and became separated for a number of years from her husband. She relented and several years before her death her husband lived in her home with her and was living there and attending to her physical wants and needs at the time of her death. There does not appear to have been a restoration of his status as husband. He is now about eighty years of age. There is no reason to doubt that the writing offered in evidence as a will when presented to Mrs. Thomas for her signature was witnessed by him at her request. Whatever may have been his faults to cause the granting of the divorce, in so far as he and his former wife were concerned, their arrangements for living together in the house after the divorce were satisfactory to them and he is entitled to commendation for his services in looking after her necessities in her long illness. There was other testimony sufficient to show the handwriting on the will was that of Mrs. Thomas and if this were the only question it would be so decided by the Court without an issue.
Another reason for the Caveat is some testimony which relates to testatrix's soundness of mind to make a will. Dr. Auslander, now in the service of the United States Navy, was called as a witness. He was in the home on July 7, 1942, and afterwards. It was his opinion that because of the cerebral apoplexy and hemorrhage in the brain that she was not competent to transact any business. She was getting worse, refused to go to the hospital and to have a private nurse. She needed some one to look after her because of her inability to care for herself. Functional control had been lost, she was stuperous and had some paralytic affection. The doctor was unable to find his records in this case and could not relate his testimony to any particular day. His testimony is particularly valuable in showing the effects of a long illness upon a person far advanced in years but it is of no value whatever in determining that Mrs. Thomas did not know what she was doing when she signed the testamentary writing.
It does not matter how ill a person may be when a will is signed. All that is necessary is sufficient knowledge of the property disposed of and to whom it is given. A testator may ignore all members of his family and all collateral relatives and give his property to a stranger, if there is sufficient comprehension of the act of giving and of the property given by the writing.
In this case Mrs. Thomas requested Mr. Snyder to make her will. It was read to her, she knew what she owned and that she was giving it all to her sister. That is all that was necessary to make a valid will. This is especially true in this case because it is a natural will. She had divorced her husband, she had restored no rights to him as a husband and her sister was the only person she desired to remember by the gift of her property.
Moreover, Mrs. Thomas reaffirmed the making of her will in conversation with Mrs. Mary Wagner, a credible witness. She visited Mrs. Thomas on July 10, 1942, and in August of that year. The following is the material testimony:
On Direct Examination:
"Q. What else did she tell you? A. She said she wasn't going to leave anything to any of them, only the one that did for her and that Albert was executor and Maggie would be well taken care of. Q. She told you that in August? A. In August. Mrs. Thomas always confided her troubles to me."
On Cross Examination she testified as follows:
"Q. When did you decide she told you Maggie was going to get anything? A. She didn't say Maggie was going to get everything. She said Maggie was going to be well taken care of."
Of course, if this woman had been deceived at the time she signed the testamentary writing on July 7, 1942, under a misrepresentation that the writing was a power of attorney and not a will, the warning of the Caveat must be observed and the probate of the writing refused. Mr. McGuinness, a reputable member of the bar, had drawn a will in 1939 for Mrs. Thomas. In that she provided differently from the will now offered for probate. She had a right to change her will at any time. There is nothing in Mr. McGuinness' testimony to establish fraud by either Mr. Snyder or Mr. Thomas or both, nor is there any inference of fraud which can be fairly drawn from the testimony of the contesting niece or the other witnesses called. There is no question of fact raised by any testimony which could be submitted to a jury: Noble's Estate, 338 Pa. 500; Kline's Estate, 322 Pa. 374, 378; Hile's Estate, 310 Pa. 541.
The record certified to this Court by the Register of Wills will be remitted to him with directions to probate the will dated July 7, 1942, and grant the letters to the Executor named therein.
Contestant appealed.
Jason Richardson, with him E. J. McGuinness, for appellant.
A. M. Oliver, with him A. W. Forsyth, for appellee.
This is an appeal from a decree of the Orphans' Court of Allegheny County refusing a motion for an issue d. v. n. and directing the probate of a will.
The questions involved the mental capacity of the decedent and whether or not fraud, duress and undue influence had been practiced upon her. The Court below held that there was not sufficient evidence to require the submission of the issues to the jury. We agree with this.
It appears in this case that the heirs and next of kin had not been joined as parties. We held in Miller's Estate, 159 Pa. 562, 28 A. 441, that "Where the heirs at law of a decedent are not voluntarily parties to an issue devisavit vel non, or have not been brought in by citation, the orphans' court has no jurisdiction to settle finally the validity of the will against such of the heirs as are not parties to the proceedings." In Miller's Estate, 166 Pa. 97, at p. 109, 31 A. 58, we said: "The act of 1832 prescribes the form of the precept to be issued by the register to the judges of the court of common pleas, in which is the direction that an issue be framed between the proponent and the caveator upon the merits of the controversy between them, and that the said judges cause all other persons who may be interested in the estate of the alleged testator 'as heirs, relations, or next of kin, devisees, legatees, or executors to be warned that they may come into our said court and become parties to the said action if they shall see cause.' "
However, the omission referred to does not warrant our reversing the decree of the court below.
The decree is affirmed on the opinion of President Judge TRIMBLE, costs to be paid by the appellant.