Appeal, No. 21, Jan. T., 1952, from order of Orphans' Court of Bradford County, March T., 1949, No. 12, in Estate of Lucy M. Snedeker, Deceased. Order affirmed; reargument refused December 12, 1951.
Benjamin Ludlow, with him James W. Cullen and John P. Vallilee, for appellant.
Chas. M. Culver, with him W. G. Schrier, J. Roy Lilley and Romeyn F. Culver, for appellee.
Before Drew, C.j., Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. CHIEF JUSTICE DREW
Lucy M. Snedeker died testate on August 8, 1948. Her will was admitted to probate by the Register of Wills of Bradford County and thereafter S. Gayle McKean Rowland, decedent's niece and next of kin, filed an appeal in the Orphans' Court alleging forgery by insertion and undue influence by one William P. Wilson, executor and remainderman under that will. The learned court below refused to grant an issue d.v.n. on either ground and dismissed the appeal. From that order contestant has appealed to this Court.
The oft repeated rule is that an issue d.v.n. will only be granted where there is a substantial dispute upon a material matter of fact: Conway Will, 366 Pa. 641; Lewis Will, 364 Pa. 225, 72 A.2d 80; Sturgeon Will, 357 Pa. 75, 53 A.2d 139. Here a careful review of the record reveals that no such substantial dispute exists and for that reason the lower court properly dismissed the appeal.
In 1929 testatrix and her mother went to Towanda to live and lived there with Wilson, the proponent. Her mother died in 1942 but testatrix continued to live in Wilson's home until her death in 1948 at the age of 80. During that time Mr. Wilson, a reputable member of the bar, attended to all of her legal and financial affairs. No fees were charged for these services. Early in July of 1937 testarix spoke to Wilson about preparing a will and while sitting at her kitchen table he wrote out a will in longhand as she gave him the information. He then left it with her to read and see if it conformed to her wishes. On July 9, 1937, she came to his office with the will and told him that it was all right and that she wished to sign it. At that time he offered to have it typewritten and put in the usual form. She stated that would be unnecessary, that she could
sign the handwritten copy which she did in the presence of two witnesses both of whom testified to the fact of execution. The will was left in Wilson's possession until September 16, 1946 when at the request of the testatrix it was turned over to her and was found among her possessions after her death.
The sixth and last paragraph of that will provides: "It is my intention as the first object and purpose of my bounty to provide, as stated for the comfort and necessities of Laura B. McHenry and S. Gayle McKean Rowland, for their lives, and until I shall decide by codicil to do otherwise, I give and bequeath and devise all the residuum of my estate to Wm. P. Wilson and name him as my Executor of my will to full carry out the trust and full purposes." Immediately following that paragraph is the signature of testatrix.
It is contestant's contention that all that was written after "until I shall decide by codicil to do otherwise" was added by Wilson after testatrix signed the will. To support this position contestant relies solely on the testimony of a handwriting expert who testified that the tail of the first "p" in "purposes" overlapped the "k" in testatrix's signature and that the "p" had been written after the "k". From this contestant argues ...