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KEHR WILL (03/23/53)

March 23, 1953

KEHR WILL


Appeal, No. 246, Jan. T., 1952, from decree of Orphans' Court of Philadelphia County, 1951, No. 2096, in Estate of Susanna Hoover Kehr, deceased. Decree reversed; reargument refused April 15, 1953.

COUNSEL

J. Webster Jones, with him Craig Huston, for appellant.

Austin Miller Lee, with him Joseph W. Henderson, George M. Brodhead and Henry L. Schimpf, Jr., for appellees.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Bell

[ 373 Pa. Page 474]

OPINION BY MR. JUSTICE BELL

Testatrix's daughter appeals from a decree of the Orphans' Court which sustained an order of the Register of Wills, which admitted decedent's will to probate

[ 373 Pa. Page 475]

    and held an alleged revocation to be inapplicable and nugatory. The crucial question is: Was the testatrix's will, dated August 7, 1942, revoked by the writing of the words "Null and Void" on a carbon copy of the will, together with the attendant and extrinsic circumstances?

Mrs. Kehr left her original will for safe-keeping with her attorney, Rowland C. Evans, Sr., and received from him and took home with her an exact carbon copy. The will gave testatrix's estate principally to charities and contained no provision for the petitioner, who is testatrix's only child.

Mrs. Kehr died on July 2, 1951, and Rowland C. Evans, Jr. probated her will of August 7, 1942, and qualified as executor. An exact carbon copy of the original will was found after Mrs. Kehr's death in a bureau drawer in her bedroom. At the top of the first page of this unexecuted copy, in the blank space above the typewritten words of the will, she had written in ink the words "Null and Void" and under these words "S.H.K." It was duly proved and the Court below found that the words "Null and Void" and the initials were all in decedent's handwriting.

Did this show a revocatory intent and if so, what did the testatrix attempt to revoke? To answer these questions we must place ourselves in the armchair of the testatrix at the time of the alleged revocation and consider all the facts and circumstances surrounding her: Jackson's Estate, 337 Pa. 561, 12 A.2d 338; Britt Estate, 369 Pa. 450, 87 A.2d 243.

In Jackson's Estate, 337 Pa., supra, this Court said (pp. 565, 566): "... in interpreting wills [or alleged revocatory writings] which do not unmistakable reveal the maker's intention... 'You may place yourself... in the testator's arm-chair and consider the circumstances

[ 373 Pa. Page 476]

    by which he was surrounded... to assist you in arriving at his intention.' See Jarman on Wills, 7th ed., 749."

Mr. Evans testified that Mrs. Kehr did not have her original will because he had refused to deliver it to her until she paid him a fee for drawing it. This evidence was, under the aforesaid authorities, clearly admissible since it was one of the important facts and circumstances surrounding testatrix when she wrote the words "Null and Void" on the copy of her will.

Mr. Evans also testified that Mrs. Kehr wrote him two letters in the summer of 1946 (which he could not find) in which she stated that her will was null and void and had been cancelled; and that she intended to make a new will which would be prepared by Mr. Hermes. The testimony concerning testatrix's intention to make a new will was corroborated by the finding of the Auditing Judge: "Other pencilled memoranda, in the handwriting of testatrix, appeared among her personal effects. These memoranda indicate that she was preparing data incident to the drawing of a new will. However, no such will was discovered."

Whenever an instrument is ambiguous or the intention to will or to revoke is uncertain, acts, declarations and relevant circumstances are admissible to clarify or explain the ambiguity or to prove testator's intention. This evidence of decedent's acts and declarations and the relevant circumstances are therefore admissible under the facts in this case (1) as (corroborative) evidence of her intent to revoke when she used the words "Null and Void"; and (2) as an explanation of what the words "Null and Void" on the carbon copy referred to, i.e., her original will. Cf. Ford's Estate, 301 Pa. 183, 195, 151 A. 789; Wenz's Estate, 345 Pa. 393, 29 A.2d 13; Koehler's Estate, 316 Pa. 321, 323, 175 A. 424; Commonwealth v. Edwards, 318 Pa. 1, 178 A. 20;

[ 373 Pa. Page 477]

    are answered in the affirmative, (e) what do the words "Null and ...


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