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HIGBEE WILL (09/26/50)

September 26, 1950

HIGBEE WILL


Appeals, Nos. 61 and 62, March T., 1950, from decree of Orphans' Court of Allegheny County, 1945, No. 904, in Estate of Mary A. Higbee, Deceased. Decree affirmed.

COUNSEL

Anne X. Alpern, with her Louis Caplan, for appellants.

Sherman T. Rock and Walter M. Newman, with them Ree, Smith, Shaw & McClay and Walker & Newman, for appellee.

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

Author: Bell

[ 365 Pa. Page 382]

OPINION BY MR JUSTICE BELL

Mary Higbee died February 12. 1945, at the age of 89. On April 9, 1936 she executed her will which, after minor bequests to relatives, left the bulk of her estate of $85,000. to two agnostic corporations. Miss Higbee also left four codicils made respectively on July 16, 1936, November 19, 1938, May 2, 1942, and March 25, 1944. None of these codicils made any material changes in her will.

The testator's brother and niece appealed from the probate of the will, alleging lack of testamentary capacity.

The will drawn by decedent's lawyer who had been her attorney since 1929 and was proved, as were the four codicils, by subscribing witnesses. The burden of proving testamentary incapacity therefore shifted to the contestants: Ash Will, 351 Pa. 317, 41 A.2d 620; Plotts' Estate, 335 Pa. 81, 5 A.2d 901; Keen's Estate, 299 Pa. 430, 149 A. 737; Ross Will, 355 Pa. 112, 49 A.2d 392; De Maio Will, 363 Pa. 559, 70 A.2d 339; and that burden can be sustained only by clear and strong or compelling evidence of lack of testamentary capacity

[ 365 Pa. Page 383]

    or of undue influence, especially where competency was proved by the scrivener and subscribing witnesses: Sturgeon Will, 357 Pa. 75, 53 A.2d 139; Kane's Estate, 206 Pa. 204, 55 A. 917; Lauer Will, 351 Pa. 438, 49 A.2d 552; Ross Will, 355 Pa. 112, 49 A.2d 392; De Maio Will, 363 Pa. 559, 70 A.2d 339.

Moreover, an issue will not be awarded unless the dispute is substantial; and there can be no substantial dispute where a verdict of a jury against the will would have to be set aside as against the weight of the evidence: Sturgeon Will, 357 Pa. 75, 53 A.2d 139; DeLaurentiis's Estate, 323 Pa. 70, 186 A. 359; Snyder's Estate, 279 Pa. 63, 123 A. 663; Lare Will, 352 Pa. 323, 42 A.2d 801; Ross Will, 355 Pa. 112, 49 A.2d 392.

Testatrix had not seen her brother for years; she apparently liked, but rarely ever saw, her niece. She had for years been interested in agnostic philosophy, but there was no evidence of undue influence on the ...


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