Appeal, No. 198, Jan. T., 1950, from order of Orphans' Court of Luzerne County, 1947, No. 1674, in Estate of Philip J. Conway or P. J. Conway, Deceased. Order affirmed; reargument refused April 9, 1951.
Conrad A. Falvello, with him Thomas F. Farrell, Matthew Grayson, and Rocco C. Falvello, for appellants.
Arthur H. James, with him Andrew Hourigan, Jr. and Paul Bedford, for appellees.
Before Drew, C.j., Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. CHIEF JUSTICE DREW
This is an appeal from an order of the Orphans' Court of Luzerne County refusing to grant an issue devisavit vel non and dismissing an appeal from a decree of the Register of Wills of that County by which a writing purporting to be the last will of Philip J. Conway and dated October 21, 1947, was admitted to probate. Contestants in the court below, Helen Donnelly and Joseph Durkin, charged decedent lacked testamentary capacity and was subject to undue influence at the time he executed the will.These contentions are again offered as the basis for appeal by Joseph Durkin, the only contestant now before us.
Philip J. Conway, a bachelor, died December 12, 1947, while a patient at the Mercy Hospital in Wilkes-Barre, Pennsylvania. He was first stricken ill on November 5, 1945 and was confined, at that time, to the Pittston Hospital for a period of nine days. On November 19, 1945, he was admitted to Mercy Hospital where he remained until his death at the age of 80.His estate was inventoried at a sum in excess of $750,000 and his heirs at law were a brother, John Conway, of Ireland, and some nephews nieces, grandnephews and grandnieces.
During his stay at Mercy Hospital, Conway executed two wills, the first of which was drawn up by his then attorney, William A. Valentine, Esq., and signed by Conway on December 20, 1945. In that will
he made several bequests to relatives and then named five charities as residuary legatees, to share equally. Although in the second will three of these charities were eliminated, and the shares of the other two reduced, none joined Joseph Durkin in this contest of the second will. Durkin was not named a beneficiary in either will. The last will was drawn by Leo White, Esq., at the request of Conway, and executed by him on October 21, 1947. By its terms the legacies provided by the earlier will were revoked and John Joyce, Margaret Horan Wright, John Durkin and Mary Durkin were substituted for the five charities as residuary legatees, to share equally.
At the hearing in the lower court contestant called fifteen witnesses; some testified to the physical condition of decedent, and some expressed an opinion that he did not have testamentary capacity. Of these witnesses three were doctors of medicine, two of whom had attended Conway in his illness and who based their conclusion on personal contact with him. Doctor Bruno, however, had not seen Conway since he left Pittston Hospital in 1945. Doctor Donnelly, who had been one of Conway's physicians at Mercy Hospital until dismissed by him in August, 1947, testified that Conway had capacity to execute codicils to his earlier will in March, 1946 and February, 1947 but could not make a will after February, 1946. By way of explanation, the witness stated that a codicil was only a "part will" and required less testamentary capacity than was necessary for the making of a will. Doctor Donnelly's opinion is therefore valueless.
Doctor Ornsteen, a neuro-psychiatrist, had never seen Conway but testified, in answer to a hypothetical question, that he did not think he had testamentary capacity on October 21, 1947. Since in resolving the ...