Joseph J. Brown, Philadelphia, for appellants.
Walter Biddle Saul and Saul, Ewing, Remick & Saul, all of Philadelphia, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 170 Pa. Super. Page 360]
On June 16, 1948, the Municipal Court of Philadelphia entered a decree of adoption of Thomas Roland Russell, now aged 36, by Mrs. Mary Freeman, a widow. Mrs. Freeman died September 18, 1948, and at no time prior to her death was the propriety of her action impugned. Mrs. Freeman, prior to the adoption, and on February 16, 1948, executed a will in which Thomas Roland Russell, described therein as her proposed adoptee, was one of the beneficiaries. After the adoption another will was executed by her, under the terms of which she left her entire estate, and the benefit of certain appointive powers, to her adopted son, Thomas Russell-Freeman.
Mrs. Freeman had a sister, Mrs. Grubb, who apparently knew of her intention to make the adoption.*fn1 Mrs. Freeman predeceased Mrs. Grubb by two months. The executrices of the latter's will moved to set aside Mrs. Freeman's will for undue influence practiced by Thomas Russell-Freeman, her adopted son. About the same time they also petitioned the municipal court to vacate the decree of adoption, apparently because even if the will of Mrs. Freeman could be set aside, her adopted son would take under the intestate laws. Upon the petition to vacate the municipal court determined the matter on the pleadings and dismissed the petition. On appeal this Court directed that the case be heard on the merits.*fn2 After hearing on the merits the court below refused to vacate the decree and this appeal was taken by the executrices of Bertha Grubb.
The petition to vacate set forth: (a) that Thomas Russell-Freeman by undue influence had caused the adoption to be had; (b) that he had perpetrated a fraud
[ 170 Pa. Super. Page 361]
upon the court in not disclosing to it things which the petitioners claimed were required.
As to the contention that the adoption was procured by his undue influence, there is nothing in the record to sustain such a finding. In fact the testimony discloses exactly the opposite. Letters written by Mrs. Freeman were introduced by the appellants to show that she was in bad health, but these letters also affirmatively showed that she was possessed of all her faculties, that her mind was unweakened, and that she knew exactly what she was doing. For instance, a letter dated December 27, 1947, was written by her to Theresa H. Walls (one of the appellants in her capacity as executrix), setting forth that she intended to adopt Russell.*fn3 In a previous letter dated September 22, 1947,*fn4 she referred to the fact that her counsel, Maurice Bower Saul, was present with her in Paris on the adoption business. She recited how fond she was of him even though 'I did give him hell,' which is evidence not only of undiminished affection but of an unimpaired will and courage. Her letters, her declarations, the testimony of her counsel, Mr. Maurice Bower Saul*fn5 (who had represented her since 1914), the testimony by deposition of G. Washington Lopp of Paris, one of her oldest friends; and the testimony of one cousin, Mary Lovett Walker, a beneficiary under prior wills (who testified, in part, that she refused to join in this contest because she knew Mrs. Freeman's wishes and purposes, that the latter was undoubtedly not the
[ 170 Pa. Super. Page 362]
subject of undue influence, and that 'her mind was good * * * was as good as it ever was'), -- establish that there was no undue influence, and that such could not have been exerted upon her. At one stage of the proceedings the insinuation was made and denied that Mr. Saul had gone along with the adoption and the drafting of the two wills because he would have been discharged by her if he had not. This again showed what the appellants actually thought was the strength of the will ...