Appeal, No. 17, Jan. T., 1950, from order of Orphans' Court of Lackawanna County, 1948, No. 650, in Estate of Rose D. Lewis, Deceased. Order reversed.
John W. Bour, with him James K. Peck, for appellants.
Edward T. Jordan, for appellee.
Before Maxey, C.j., Drew, Linn, Stern, Patterson, Stearne and Jones, JJ.
OPINION BY Mr. Justice HORACE STERN
In this case the court below erred in refusing to grant an issue d.v.n.
Decedent, Rose D. Lewis, died at the age of 76 on July 1, 1948.She left surviving, as her only heirs at law, five grandchildren who are the children of her son, Dr. Percival Lewis; the latter predeceased decedent. Her estate consisted of a large building at 1103 Jackson Street, Scranton, worth approximately $25,000, and household furniture valued at $232. By her will she bequeathed the sum of $2,000 each to four of her grandchildren, $1,000 to the remaining grandchild, and $300 to the Watch Tower Society; she devised the Jackson street property to her sister, Carrie C. Bevan, and appointed her to be the executrix of her will. The real estate being thus specifically devised, there were no assets available to pay the legacies.
The will having been admitted by the Register to probate, three adult grandchildren filed their appeal for the award of an issue to determine decedent's testamentary capacity and whether or not her will was procured by undue influence; the court appointed guardians ad litem for the two minor grandchildren and authorized and directed them to join in the appeal. After a hearing before the orphans' court the appeal was dismissed.
Decedent's will was executed by her on her death bed at the West Side Hospital in Scranton on June 30, 1948, which was the day before she died. For many years she had lived by herself and was a severe sufferer from endocarditis, myocarditis, cardio vascular disease, dropsy, and other ailments, for which she was hospitalized in 1945 and again in 1946. Early in 1948 her condition became worse and on May 15 she was removed from her home by stretcher and ambulance and taken to the West Side Hospital where she remained until her death. On June 30 Joseph V. Phillips, Esq. was
summoned by Mrs. Bevan, the proponent, to come to the hospital for the purpose of drawing a will for decedent. Mr. Phillips prepared the will in his own handwriting; in the room at the time, in addition to decedent and Mr. Phillips, were Mrs. Bevan and one Marie Leitner, 79 years of age, who was a lifelong friend of decedent; Mrs. Leitner lived in an apartment in the same building as that in which decedent lived, and had assisted her with her housework over a long period of time.
What was the testimony presented by the contestants in support of their allegation of testamentary incapacity? Dr. Cecil R. Park, who had been decedent's attending physician for nearly three years prior to her death, testified that her heart condition caused dropsy the result of which was that her legs and abdomen were swollen to half again or even twice their normal size; that on June 29 she took a decided turn for the worse; that she was mentally confused; that her speech was incoherent and it was difficult for any one to understand her; that on June 30, the day the will was executed, she was in a semi-comatose or stuporous state; that she was unable to recognize him; that, in his opinion, her poor circulation had caused edema of the tissues of the brain; that -- likewise in his opinion -- her condition was such that she could not know the extent of her property, recognize the objects of her bounty, nor realize what she was doing sufficiently to make a will; that she could not reason or think well and was not of sound mind. Seven attending nurses, all of whom saw and observed decedent on June 30, substantially confirmed this physician's testimony, as did ...