Appeal, No. 210, Jan. T., 1949, from judgment and decree of Orphans' Court of Philadelphia County, 1948, No. 30, in Estate of Sealie Wilson, Deceased. Judgment and decree affirmed; reargument refused April 26, 1950.
Fitzhugh Lee Styles, for appellant.
Edward Tolen, for appellee.
Before Maxey, C.j., Drew, Linn, Stern, Stearne and Jones, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
The Orphans' Court of Philadelphia County declined to enter judgment for proponent non obstante veredicto upon a verdict by a jury against the will. This appeal followed.
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
farm was close to Jacksonville and he had never before been beyond that city.) Proponent contends that because the son neglected his mother and proponent cared for decedent, she properly disinherited the son and grandchildren and devised and bequeathed her estate to proponent who therefore became, in the circumstances, the natural object of decedent's bounty. Contestant, the son, and his witnesses, on the contrary, present a different situation. They concede that from March 2, 1946, until April 10, 1946 (the date of the questioned will) and thereafter until decedent's death, proponent nursed and cared for his sister. It is also admitted that the son was an alcoholic. It was testified by some witnesses for both proponent and contestant that despite the son's weakness, the mother retained a deep affection for the son and his children. Four other wills had been drawn and executed by decedent previous to the questioned document. In the first three wills active trusts were created for the son and the grandchildren. From the date of proponent's arrival in Philadelphia on March 2, 1946, he promptly assumed the management and control of decedent's financial affairs. On April 2, 1946, at proponent's direction to the scrivener, a will was drawn and was executed by decedent in which she left proponent the bulk of her estate. ...