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KEES v. GREEN (09/25/50)

September 25, 1950

KEES, EXECUTOR,
v.
GREEN, APPELLANT



Appeal, No. 74, Jan. T., 1950, from decree of Court of Common Pleas No. 7 of Philadelphia County, Dec. T., 1948, No. 1345, in case of Thomas Kees, Executor, Estate of Thomas J. Corson, Deceased v. Prescott Green. Decree affirmed.

COUNSEL

John J. Gain, for appellant.

Harry, J. Gerber, for appellee.

Before Drew, C.j., Stern, Stearne, Jones and Bell, JJ.

Author: Bell

[ 365 Pa. Page 369]

OPINION BY MR. JUSTICE BELL

Plaintiff, as executor of the will of Thomas J. Corson, deceased, filed a bill in equity to compel defendant to transfer and deliver back to him certain shares of stock and the money delivered under an Agreement dated August 30, 1948 by decedent to defendant, together with an account thereof. The court granted the relief prayed for on the grounds: (1) that Corson did not comprehend the nature and consequences of the agreement; and (2) that it was obtained by a violation of confidential relationship; and (3) by undue influence. Defendant took this appeal.

The facts in this case are so important that it is necessary to recite them at length.

Thomas J. Corson died on December 17, 1948 at the age of 86 years. Corson lived for 35 years with Mrs. Dickinson at her home, 2824 North Mascher Street, Philadelphia. The defendant, who was no relation to Corson, lived with Mrs. Dickinson, his grandmother, from the time he was 6 years old until his marriage in 1941. Corson bequeathed to Mrs. Dickinson, in his will of February 2, 1944, $5,000 and half of his residuary estate. In that will he bequeathed the defendant $100.

[ 365 Pa. Page 370]

In October 1947, Corson visited his attorney, Mr. Troutman, to execute a codicil to his 1944 will, to correct the middle initial in the name of Ella Dickinson, and to reduce the legacy given to one of his nieces. On January 6, 1948, ten days after the death of Mrs. Dickinson, Corson again visited Mr. Troutman for the purpose of changing his will. On January 7, 1948 Corson executed a new will making substantially the same bequests as he had previously made to churches and to his nieces, but increasing his bequest to the defendant from $100 to $200 and leaving his entire residuary estate to Hess (to whom he had previously left half of his residuary estate). Troutman noticed that Corson had failed physically, appeared to be in a daze and did not seem to know what he wanted. His condition was such that Troutman even then had grave doubts as to his testamentary capacity but finally drew the new will because it contained substantially the same bequests as in the earlier will except for the change necessitated by the death of Mrs. Dickinson. One week later, on January 13, 1948, Corson, accompanied by plaintiff, plaintiff's wife, and by defendant, went to see a new attorney Mr. Gerber for the purpose of having him draw a new will. This will contained substantially the same bequests to churches and to relatives but it increased the bequest to defendant from $200 to $2,000 and left the residuary estate in equal shares to defendant, to May Kees, wife of plaintiff, and to four of Corson's relatives. It also named plaintiff as executor. At the time of this visit, defendant gave Gerber a memorandum in defendant's handwriting which provided for a few bequests and ended with the words "Prescott Green to receive the remainder". Green then stated to the attorney: "This is exactly how Mr. Corson wants his will drawn". Mr. Gerber said that that was not the way wills were made in his office. As a consequence, when the parties were leaving, defendant said to Kees, "That

[ 365 Pa. Page 371]

    fellow Gerber thinks he is pretty smart but I will get my share". On March 11, 1948 Corson returned to Gerber's office and had him prepare a codicil (which decedent promptly executed) to his will of January 13, 1948 in which ...


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