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May 25, 1953


Appeal, No. 32, Jan. T., 1953, from judgment of Court of Common Pleas of Carbon County, Oct. T., 1947, No. 6, in case of Russell Williams v. Jennie McCarroll, Rose McClafferty and Willetta Castle. Judgment affirmed.


Frank X. York, for appellants.

John H. Bigelow, with him Bernard J. Duffy, Jr. and B. J. Duffy, Sr. and John G. Cipko, for appellee.

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

Author: Bell

[ 374 Pa. Page 283]


Thomas McMullen, a single man, died August 1, 1945, having made this contested will on February 9, 1945. Two questions were submitted to a jury for determination: (1), did McMullen on February 9, 1945 have testamentary capacity, and (2) was his will obtained by undue influence? The first jury was unable to agree whether McMullen had testamentary capacity, but found that his will was not obtained by undue influence. On a retrial the jury found that McMullen did not have testamentary capacity to make and execute a valid will on February 9, 1945, and that the will was obtained by undue influence practiced upon McMullen by his nephew, Russell Williams. The Chancellor who saw and heard the witnesses entered judgment non obstante veredicto. The testimony exceeded 1,000 pages, so it will be necessary for us to briefly summarize what we consider to be most important.

The will (or alleged will) gave his sister Margaret, with whom he had lived for 60 years, all his property for life with power of consumption for support and welfare; and upon her death the property remaining was given to Margaret's son, Russell Williams, except for 3 legacies of $1,000 each. Russell Williams lived with his mother and Thomas McMullen and was the latter's frequent companion; the contestants rarely ever saw their uncle and were not on friendly terms with him.

Plaintiff proved the will by two disinterested subscribing witnesses and rested. Contestants then produced 7 witnesses, all of whom were interested, who testified that decedent was of unsound mind and incapable of making a will. Most of them had not seen

[ 374 Pa. Page 284]

    decedent for two years prior to the will but they testified that he acted funny, mumbled, rambled, was incoherent, had peculiarities, had a blank look on his face, did not recognize them, suffered from loss of memory, and did a number of things which a rational man would never have done. Several additional witnesses corroborated them in small details. Two doctors who saw testator five months after he made his will testified that he was in their opinion incapable of making a will, since he was suffering from senile dementia caused by arteriosclerosis. However, it was admitted that it was possible for a person with that disease to have lucid intervals, and the testimony of the doctors was considerably shaken on cross-examination. Another witness for contestants, Judge McCREADY, expressed the opinion that during 1943 a guardian should have been appointed for McMullen. He further testified that in his opinion McMullen was mentally ill; but he had no knowledge of deceased's mental capacity during February, 1945, and was unable to say whether McMullen was qualified to make a will at that time.

Plaintiff then produced 12 witnesses (in addition to himself and the 2 subscribing witnesses), and decedent's attorney who drew the will and had known decedent intimately for 45 years, and two doctors, one of whom had been the family doctor who had seen and treated testator every two weeks for the last six to eight years of his life. Most of these witnesses including the family doctor and decedent's attorney were disinterested witnesses, and the lengthy testimony of the attorney was especially strong and convincing. From a reading of the Court's opinion it appears to us that he believed plaintiff and his witnesses and doubted or was unimpressed by defendants' interested witnesses and doctors.

[ 374 Pa. Page 285]

We quote the following excerpts from the very able opinion of President Judge KREISHER, who was specially presiding:

"This was a trial of an issue devisavit vel non....

"The plaintiff-proponent made out a very strong*fn* prima facie case by the proof of the document's execution and the subscribing witnesses....

"...It is... the rule in Pennsylvania that in every case in which the question of testamentary capacity and the allegation of undue influence is presented to the court for determination, it is important to examine the disputed document itself to ascertain whether the testamentary scheme is natural and reasonable and in harmony with the family background. We have quoted the contested document above with the foregoing principles in mind, and we at first observe that Mr. Hollar and Mr. Frantz, the subscribing witnesses, were both disinterested in the outcome of this controversy, and in no way related to any of the parties. We also note that the document was prepared by the decedent's own attorney, in the attorney's office, and that the decedent's own physician at the time of the execution of the document issued a certificate, certifying that the decedent had the mental capacity to execute a will. It is announced in all of the late cases in Pennsylvania that we have examined, that less capacity is required to make a valid will than is sufficient in most cases to transact ordinary business, and that the capacity of the testator at the ...

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