Appeals, Nos. 95 and 96, March T., 1951, from decree of Orphans' Court of Allegheny County, 1948, No. 346 in Estate of Franz Franz, deceased. Decree affirmed.
George S. Goldstein, with him Harold M. Cohen, for appellants.
L. C. Euwer, with him S. G. Alter, for appellees.
Before Drew, C.j., Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. CHIEF JUSTICE DREW
Geraldine E. Franz and Xavier W. Franz, Jr., grandchildren of testator, Franz Franz, brought these appeals from the decree of the Orphans' Court of Allegheny County refusing an issue devastavit vel non and dismissing their appeals from the admission to probate of a writing purporting to be the last will of Franz Franz.
Franz Franz died on January 14, 1948, at the age of 80, leaving to survive him two daughters, Helen Franz, who lived with him, and Mary Rothleder, and two grandchildren, Geraldine E. Franz and Xavier W. Franz, Jr., the children of a son, Xavier W. Franz, who had died on August 31, 1946. On October 28th or 29th, 1946, Franz Franz went to the residence of Samuel G. Alter, Esq., who had drawn an earlier will for him, and requested him to prepare the will in contest. Alter did so, but, on the instruction of Franz, did not make any provision for the children of the deceased Xavier Franz, although it had been provided in his earlier will that Xavier Franz was to share equally with testator's other children. The changes were made in the second and third paragraphs of the earlier will and these paragraphs, as changed, were incorporated verbatim as paragraphs 2 and 3 of the contested will. On October 30, 1946, Alter informed testator that the will was ready and, later in the day, after placing the will in a sealed envelope, turned it over to Helen Franz who had been sent for it. The following day, Franz took the will to the bakery shop of John and Margaret Einwag, who were his friends and neighbors, and asked them to read
it and sign it as witnesses. This they did after he had placed his signature on the document in their presence.
Seven days after the death of testator in 1948, the will of October 31, 1946, was admitted to probate and letters testamentary granted to the executor, Alter. Contestants filed their appeals from the decree of probate on March 1, 1949, and on May 24, 1949, a decree nisi was entered dismissing the appeals. Upon the petition of contestants a new hearing was granted on the ground of alleged after-discovered evidence and on August 25, 1950, the final decree was entered. These appeals followed.
In their petition in the lower court, contestants alleged that testator lacked testamentary capacity and was subjected to the undue influence of his daughter Helen at the time he executed his will. In support of these contentions, they called three medical doctors, who had attended testator at some time during his later years, and several lay witnesses who testified as to their personal relations with the decedent. However, none of these doctors were treating testator at the time of the signing of the will. Dr. Sexauer, the most recent attending physician in point of time of the execution of the will, examined Franz for the first time nine months after the execution. He found testator to be suffering from a painful cancer from which he subsequently died and testified that he appeared ten years older than his age, was hard to understand because of his advanced years and his difficulties with the English language, and that he thought he could be subjected to the influence of another. The lower court properly held that the testimony of these witnesses was too remote and inconclusive on the question of testamentary capacity.
The testimony of contestants' lay witnesses indicated that testator was a sick, aged man who nevertheless could take ...