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GRAY WILL (09/26/50)

September 26, 1950

GRAY WILL


Appeal, No. 35, March T., 1950, From decree of Orphans' Court of Greene County, June T., 1948, No. 39, in Estate of Sarah E. Gray, Deceased. Decree Affirmed; reargument refused November 14, 1950.

COUNSEL

J. B. F. Rinehart, Jr., with him Waychoff, Maxwell & Waychoff, for appellant.

W. C. Montgomery, with him Montgomery, Thompson & Baily and Scott & Hook, for appellee.

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

Author: Bell

[ 365 Pa. Page 412]

OPINION BY MR. JUSTICE BELL

Sarah Gray died March 18, 1948, at the age of 93, leaving a will dated September 21, 1945. She left to survive her, two sons and two daughters; three grandchildren (who are children of a deceased son); four grandchildren (children of another deceased son); and four great-grandchildren (who are children of a deceased son of one of decedent's deceased children).

In her will dated September 21, 1945, decedent left small pecuniary bequests to all of her descendants, her house and lot to her daughter, Lucy, and the residue of her estate to her three children, Rachel, Donley and Lucy, in equal shares. Her son, Ross Gray, appealed from the probate of the will alleging (1) a later will dated January 22, 1946; (2) lack of testamentary capacity; and (3) undue influence.

The learned trial judge, President Judge MATTHEWS, in a very able and exhaustive opinion, discussed contestant's evidence and his contentions of lack of testamentary capacity and of undue influence as well as all the incidental but important questions that arose in this case; and held (1) that the writing dated January 22, 1946 was not a valid will; (2) that testatrix had

[ 365 Pa. Page 413]

    testamentary capacity; (3) that there was no undue influence; and (4) that there was no substantial dispute sufficient to entitle the contestant to an issue on the ground of testamentary capacity or of undue influence. For reasons unknown to us, Judge MATTHEWS did not decide or discuss whether said writing of 1946 revoked testatrix's will dated September 21, 1945.

Ross Gray appealed form the court's decree, but probably because of the lower court's convincing opinion, limited this appeal to questions arising out of the writing of January 22, 1946. Gray contends (1) that said writing, which was signed by a mark and witnessed by two persons, only one of whom, however, signed her name as a witness thereto, was a "well or other writing" within the meaning of Section 5 of the Wells Act of April 24, 1947, P.L. 89; 20 PS ยง 180.5, and (2) that said writing and other testimony evidenced an intention upon the part of the testatrix to revoke her will of September 21, 1945, and therefore an intestacy resulted.

The subject of revocation and revival of wills has bothered and perplexed courts throughout America for over a century (See Burtt Will, 353 Pa. 217, 44 A.2d 670; Ford's Estate, 301 Pa. 183, 151 A. 789; McClure's Estate, 309 Pa. 370, 165 A. 24). Fortunately, the Wills ...


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