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WEISS WILL (01/02/51)

January 2, 1951

WEISS WILL


Appeal, No. 242, Jan. T., 1950, from decree of Orphans' Court of Philadelphia County, 1949, No. 1610, in Estate of Regina Weiss. Decree affirmed.

COUNSEL

George J. Ivins, for appellant.

Edward E. Dicker, for appellee.

Before Drew, C.j., Stearne, Jones and Chidsey, JJ.

Author: Jones

[ 366 Pa. Page 457]

OPINION BY MR. JUSTICE JONES

The appellant is a son of the decedent and a legatee under her alleged last will, here involved, which was probated before the Register of Wills of Philadelphia County who granted letters testamentary thereon to the proponent-executor. On petition of the decedent's daughter, alleging a want of testamentary capacity

[ 366 Pa. Page 458]

    and undue influence in respect of her mother's execution of the testamentary writing, the Orphans' Court, after a hearing, allowed an appeal from the probate but limited the issue devisavit vel non to whether the decedent lacked testamentary capacity at the time of the execution of the alleged will. The issue was tried before a judge of the Orphans' Court, sitting as chancellor, and a jury which returned a verdict against the will. The proponent moved for judgment n.o.v. and for a new trial. The court en banc overruled these motions and, by final decree, from which this appeal was taken, entered judgment on the verdict and set aside and revoked the letters testamentary.

The appellant assigns as error the overruling of the proponent's motions and, in support thereof, contends that there was not sufficient evidence adduced at trial to support the jury's verdict and that the chancellor erred in certain rulings made at trial. In both respects, the contention is without merit.

The trial errors charged are (1) the chancellor's allowance, over objection, two questions by contestant's counsel in cross-examination of the proponent of the will who happens to be also the scrivener and a subscribing witness, (2) the trial judge's calling to the attention of contestant's counsel that he had not offered rebuttal testimony in refutation of statements, hostile to the decedent, attributed by the scrivener's testimony to the contestant and her husband, and (3) the court's refusal to withdraw a juror, on motion of proponent's counsel, because the court, in a colloquy with counsel during the latter's extended objection to plainly relevant and material testimony, had observed, by way of countervailing argument, that "ordinarily a parent divides his property among all his children." The criticized questions in cross-examination were entirely proper. Both of them related to the execution of the will and were relevant to the issue. Certainly, the trial

[ 366 Pa. Page 459]

    judge cannot be thought to have abused his discretion in not sustaining objections to them. As to the court's calling the attention of contestant's counsel, before the case was closed, to the fact that he had possibly neglected to introduce certain rebuttal testimony, the complaint voiced by counsel for the appellant is to be deprecated. The failure of contestant's counsel in such regard was patently an oversight; and the omission of the testimony would have made the trial less than a thorough and complete inquiry. The action of the learned trial judge was not only not censurable but commendable. It was recently reiterated in Gerlach Estate, 364 Pa. 207, 215, 72 A.2d 271, that "The orphans' court 'in its discretion may correct its own records in the interest of justice, even to protect parties from the effect of their own mistakes or blunders....': Sloan's Estate, 254 Pa. 346, 350, 98 A. 966. 967, 968; [and citing other cases]." The expression of the court as to how a parent ordinarily ...


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