Appeal, No. 158, March T., 1952, from decree of Orphans' Court of Allegheny County, 1949, No. 4112, in Estate of Andrew J. M. Sciutti, deceased. Decree affirmed; reargument refused November 28, 1952.
Fred C. Houston, Jr., with him Houston & Houston, for appellant.
Joseph A. Cirillo, with him Lloyd E. Gluck and Ferraro and Gluck, for appellees.
Before Stern, Stearne, Jones, Bell and Musanno, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
The Orphans' Court of Allegheny County dismissed an appeal from the decree of the Register of Wills refusing probate of a letter and an unexecuted will (sought to be incorporated in the letter by reference). The appeal is from the decree of the Orphans' Court.
Andrew J. M. Sciutti died May 14, 1949. He was survived by his widow and collateral relatives. His estate was inventoried at over $66,000. On October 13, 1943, he typed a will, whereunder five hundred dollars each was bequeathed to a church and to three religious organizations; one thousand dollars went to each of three nephews; his married sisters, brothers and another nephew were each given one dollar; the remainder of his estate decedent bequeathes and devised to his wife, with alternate disposition in the event of her predecease (which did not occur); his wife was named executrix, and a trust company as executor if she were deceased. For reasons not disclosed in the record, decedent failed to sign this document, although it was witnessed by two individuals. On November 27, 1948 (over five years thereafter) decedent signed a letter, written by decedent's wife at his dictation, addressed to Norman B. Ward, his investment counselor. The
letter refers to decedent's disappointment over the distribution of his mother's estate; that his "folks" desired his marital separation "so they can get control of what I may have". The pertinent portion of the letter reads: "In my last will and testament I have left my bonds and securities to my wife. I would like to arrange matters so nothing could ever interfere with my wishes in this respect. What procedure would you suggest to safeguard my wife's interests? Not having children I think it best to take every precaution as I do not want my will to be broken. I have reasons to know my folks would do this as they have let out from time to time that anyone with kidney trouble is not mentally responsible."
We can add little to the accurate and comprehensive opinion of Judge Cox. He wrote: "The letter addressed to Norman B. Ward, written more than six years [sic] after the date on the will is not a testamentary instrument. For it to be so, is [sic] was essential that decedent should have expressed plainly and unambiguously an intent by means of it to make a testamentary disposition of property, real or personal, owned by him. This he did not do. The context of the letter clearly discloses that his testamentary intent was contained in a will referred to in the letter, and that the will itself was considered by him to be the testamentary instrument which disposed of his estate. We have no assurance even that the will offered for probate together with the letter is the will referred to in the letter, decedent having failed to identify his will, either by date or by an adequate description of its contents."
It is conceded that an unsigned document in the form of a will cannot be probated as a will. A will in order to be valid must be signed: Sec. 2 Wills Act of April 24, ...