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ADOPTION RUSSELL. APPEAL WALLS ET AL. (RUSSELL ADOPTION CASE.) (06/06/50)

June 6, 1950

IN RE ADOPTION OF RUSSELL. APPEAL OF WALLS ET AL. (RUSSELL ADOPTION CASE.)


COUNSEL

Lemuel B. Schofield, Joseph J. Brown, Philadelphia, for appellants.

Robert W. Sayre, William H. S. Wells, Walter Biddle Saul, Saul, Ewing, Remick & Saul, Philadelphia, for appellee.

Before Rhodes, P. J., and Hirt, Dithrich, Ross, Arnold and Fine, JJ.

Author: Arnold

[ 166 Pa. Super. Page 592]

ARNOLD, Judge.

On April 6, 1948, Mrs. Mary C. Freeman, age 71 or 72, presented to the Municipal Court of Philadelphia a petition to adopt Thomas Roland Russell, age 33. A hearing was had on April 23, 1948, and the Municipal Court of Philadelphia entered an adoption decree on June 16, 1948. Mrs. Freeman died September 21, 1948, some three months thereafter. Her will gave practically all her estate to Russell and also exercised certain powers of appointment in his favor. She was a woman of means, possessing an estate of some $300,000, in addition to the powers of appointment mentioned. At her death she was survived by her sister, Bertha C. Grubb, who died testate on November 19, 1948.

On January 5, 1949, the executors of Bertha C. Grubb presented a petition to the Municipal Court of Philadelphia, praying that the adoption decree be vacated as procured by undue influence practiced on Mrs. Freeman by the adoptee. On the rule to show cause, the respondent, Russell, filed an answer on the merits, and at the same time moved to dismiss as if on demurrer. The court below held the averments of the petition were insufficient, and discharged the rule. The petitioners then appealed.

The principle reason given for the dismissal seems to be that the averment of 'undue influence' of 'domination' (practiced by Russell on Mrs. Freeman) was merely a conclusion without any supporting facts.

The motion to dismiss the petition to vacate admits, for purposes of argument, all facts pleaded and the reasonable inferences therefrom.

In Quein's Will, 361 Pa. 133, 146, 62 A.2d 909, 915, it is stated: ' But undue influence may be established by circumstantial evidence. * * * [and it] is to intangible and illusive that it can be rarely proven by * * * testimonial or direct evidence.' And in Freed's Estate, 327 Pa. 572, 577, 195 A. 22, 24, Mr. Justice Stern, speaking for the

[ 166 Pa. Super. Page 593]

Supreme Court, stated: '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 experience can -- and in a case such as the present must -- recognize it as the causative factor which linked the execution of this highly unnatural will to the circumstances preceding and attending it, and in which appellant, the sole beneficiary, played such a ruthless and dominating part.' See also Caughey v. Bridenbaugh, 208 Pa. 414, 424, 57 A. 821.

In pleading that a document was executed because of undue influence, the pleader can only aver the conditions which enabled one party to dominate the will of the other; the means employed; the acts done; the opportunity, purpose and intent; and the resultant effect. That the one party was improperly influenced is simply a conclusion flowing from the facts. It is much the same as in a civil pleading, where the pleader alleges that the defendant did certain acts with 'intent to defraud'; or 'maliciously' caused a breach of contract. In such cases these are but labels to describe a state of mind. Whether one was 'influenced' depends on the mind or will of the victim, and the word 'unduly' is ...


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