Appeal, No. 20, March T., 1950, from decree of Orphans' Court of Washington County, Feb. T., 1947, No. 22 in Estate of Emma Grable Hildebrand, Deceased. Decree affirmed.
Thomas L. Anderson, for appellant.
Charles G. Sweet, with him David I. McAlister, Adam L. Sanders and McAlister & Sweet, for appellee.
Before Drew, C.j., Stern, Stearne, Jones, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
The appeal concerns the partial revocation of a will by obliteration. The pivotal issue is whether an effective obliteration was established.
Emma Grable Hildebrand, the testatrix, was an aged widow, who had resided with her step-son for many years and raised the step-son's daughter, Mildred Hildebrand Dunn. Mrs. Hildebrand died, testate, on April 22, 1946. Her heirs and next of kin were four nieces. The probated, typewritten will was professionally prepared and is dated July 19, 1935. Under the terms of the will $3,000 was bequeathed to Mildred Hildebrand Dunn (child of her step-son), $2,000 to Martha Horn Amos (niece), $1.00 each to Odessie Grable and Maggie Grable Fowler (nieces) and $2,000 to Mary Grable Conkle (niece and contestant). The seventh item of the will, the residuary clause, reads as follows: "Seventh. As to all the rest, residue and remainder of my estate of which I may die seized or entitled to at the time of my death, whatsoever and wheresoever, I give, bequeath and devise to be equally divided among Mildred Hildebrand Dunn, Martha Horn Amos, share and share alike."
Mildred Hildebrand Dunn was named as Executrix. Following testatrix's conceded signature and the duly executed attestation clause, and at the spatial end, appear the following unsigned words in the admitted handwriting of testatrix: "I Emma Grable Hildebrand marked off one name in Seventh (7)"
After the death, the will was found in a sealed professional envelope of testatrix's predeceased scrivener-lawyer in the testatrix's safe deposit box.
The present issue was properly raised upon an appeal from probate and not on the construction of the will: Rockett Will, 348 Pa. 445, 35 A.2d 303. Since testatrix died in 1946 the case is governed by sec. 20 (a) and (b) of the Wills Act of June 7, 1917 P.L. 403, 20 PS 271, which expressly provide that any devise or bequest may be revoked "... by... obliterating... the same by the testator himself...."
Where testator had custody of the will, the presumption is that any obliteration was his own act: Baptist Church v. Robbarts, 2 Pa. 110; Evans's Appeal, 58 Pa. 238; Wood's Estate, 247 Pa. 377, 93 A. 483; Sando Will, 362 Pa. 1, 66 A.2d 312; Lindeman's Estate, 141 Pa. Superior Ct. 225, 14 A.2d 837; Heller Estate, 158 Pa. Superior Ct. 194, 44 A.2d 528. The fact that Mildred Hildebrand Dunn had joint access to the testatrix's safe deposit box will not of itself rebut this presumption. Contestant submitted no proof to the contrary. Mrs. Dunn ...