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October 15, 1953


Appeals, Nos. 139 and 140, March T., 1952, from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1951, No. 28, in case of Florence F. May et al., v. Fidelity Trust Company, Guardian, Estates of Stephanie Frank and Ann Frank. Judgment affirmed; reargument refused November 10, 1953.


Earl F. Reed, with him Kenneth G. Jackson, James S. Crawford, III, and Thorp, Reed & Armstrong, for appellants.

John C. Bane, Jr., with him Donald B. Heard, Walter T. McGough and Reed, Smith, Shaw & McClay, for appellees.

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

Author: Stearne

[ 375 Pa. Page 137]


The appeals are from a judgment of the Common Pleas Court of Allegheny County non obstante veredicto in favor of proponents in a will contest. The issue was devisavit vel non. The verdict of the jury was in favor of contestants, who alleged undue influence.

The cogent relevant testimony may be stated with comparative succinctness, despite a trial which took ten and one-half days. There are 184 exhibits with a printed record of 1816 pages. The detailed narrative of facts may be found in the opinion of the hearing judge in the orphans' court refusing an issue (printed in supplemental record), in the majority opinion of that court reversing the hearing judge, and in the opinion of the court in banc in the common pleas entering judgment for proponents n.o.v.

The decedent, Anna A. Frank, a widow, died April 11, 1947. Her heirs and next of kin were a daughter, Florence F. May (a proponent) and two minor grandchildren, Stephanie Frank and Ann Frank (contestants), children of a deceased son, Herbert I. Frank. The daughter Florence is married to Harry L. May

[ 375 Pa. Page 138]

    and has two children, Herbert L. May and Marion May Linton (also proponents).

The personal estate of decedent is said to aggregate approximately $600,000. Any ownership of real estate is not disclosed by the record. Decedent left a will dated February 6, 1946, prepared by an attorney, executed by her and witnessed by the lawyer-scrivener and his secretary. Under its provisions $1,000 was bequeathed to a cemetery association for perpetual care of the burial lot. All clothing, furniture, household goods and personal effects were bequeathed to decedent's daughter Florence. The residue was divided as follows: two thirds absolutely to the daughter Florence. The remaining one third was placed in trust for the daughter's two children, Herbert L. May and Marion May Linton. There are contingent provisions relating to possible deaths of the daughter and her two children without leaving issue, whereupon the daughter's husband, Harry L. May, is given a life estate with remainder to surviving children of the deceased son (the contestants). In the event of the death of such named beneficiaries, the trust estate is passed to decedent's niece and nephew.

Except for the remote recited contingency, contestants, the children of her deceased son, Stephanie and Ann, were disinherited. By the fourth item of the contested will decedent stated: "I having heretofore made substantial gifts to Stephanie Frank and Ann Frank, children of my deceased son, Herbert I. Frank, and being satisfied they will also be assured of ample funds from the estate of my deceased husband, Abraham Frank, I therefore give, devise and bequeath [as recited above]."

The daughter Florence was named as executrix, and in case of her inability to act then testatrix's son-in-law, Harry L. May, was substituted. Should both be

[ 375 Pa. Page 139]

    unable to act decedent directed that a trust company be selected in the manner indicated by the will.

In the opinion of Judge KENNEDY speaking for the court in banc when entering the judgment n.o.v., it is stated: "The contestants have conceded the testamentary capacity of Anna A. Frank since early in the hearing in the Orphans' Court. The contestants at this trial also conceded that the testimony in their behalf did not warrant a conclusion that Anna A. Frank was, at the time of the execution of the will, or any time thereafter, a person of greatly weakened intellect, considering her age and physical disabilities, and therefore agreed that the burden of proving undue influence, misrepresentation, etc., remained with them."

The accuracy of Judge KENNEDY'S statement is supported by the opinion of the decedent's family physician and contestants' witnesses, referred to in the opinion as follows: "[The doctor] did state that except for the few occasions when Mrs. Frank was in a diabetic coma, that she remained mentally strong and alert, considering her age and her physical ailment, up until the time of her death. It might be here mentioned that all of the contestants' witnesses agreed that Mrs. Frank was a woman of high intelligence and mentally strong."

It is freely conceded that Harry L. May, the son-in-law (a proponent), the lawyer who drafted the will, occupied a confidential relation toward decedent. In the opinion of the court in banc it is said: "It was clearly shown that by [May's] own testimony, and his own admission that he stood in a highly confidential relationship with Mrs. Frank."

The testimony must be reviewed in the light of the conceded facts that decedent possessed testamentary capacity, and her mind was not weakened either by mental or physical affliction, and that the husband

[ 375 Pa. Page 140]

    of the chief beneficiary and the father of the other two legatees, occupied a confidential relation toward decedent.

According to the testimony of Mr. and Mrs. May, after her son's death on January 5, 1946, decedent informed them that she desired to make a new will; that she took her former will of 1936 wherein her son, to his dissatisfaction, was given but a life estate in one-third with remainder to contestants; and that decedent went over the will with the Mays item by item. Decedent informed them that she did not want any of her money to go to the family of the widow of the son and that she was not leaving anything to contestants because with their shares in her late husband's trust and under their father's will they would be amply provided for. Mr. May testified that he made elaborate notes of her instructions. Later in his office in Steubenville, Ohio, Mr. May testified that he drafted the will in accordance with her instructions and on February 2, 1946, he went over the draft with decedent item by item, and every paragraph was carefully discussed and explained. He further testified that he requested decedent to call her bank and have them recommend a Pittsburgh firm of attorneys. Decedent did this and one of the leading firms of Pittsburgh, that of Reed, Smith, Shaw and McClay was selected. Mr. May testified that a lawyer in Steubenville told him that James H. Beal, Esq., was a member of that firm; in consequence Mr. May telephoned Mr. Beal and arranged for his firm to write the will of decedent according to the draft of the will to be forwarded to the firm. Following such telephone conversation the following letter was sent:

"Harry L. May, Attorney at Law, Steubenville, Ohio

[ 375 Pa. Page 141]

February 4, 1946

"Reed, Smith, Shaw & McClay, 747 Union Trust Building, Pittsburgh, Penna., Attention James H. Beal, Esq., Dear Mr. Beal:

"In accordance with our telephone conversation this afternoon, I am enclosing herewith carbon copy of will of Anna A. Frank of Pittsburgh.

"I would request that you have an origional [sic] and two carbon copies made in your office and Mrs. Frank and myself will be present for execution of the same on Wednesday February 6th at 2:00 P.M.

"As explained to you in our conversation, I, being a son-in-law of Mrs. Frank and my wife and children being beneficiaries under this will, do not desire the slightest question being raised as to undue influence or otherwise; hence deemed it proper that the matter be consummated in your office in order that whoever you may delegate to take care of the same in your absence will be in position, if necessary, to so testify.

"Please understand I do not anticipate any question arising regarding this matter and am only taking this course in order that there can be no possible criticism on account of my preparing the will which was done at the express request of Mrs. Frank.

"Trusting to have the pleasure of meeting you personally at some time in the near future, I remain

Very truly yours, (s) Harry L. May, Harry L. May

M enclos."

At the appointed day and hour Mr. May together with his son accompanied decedent to the office of Messrs. Reed, Smith, Shaw and McClay where they met Frank W. Ittel, Esq., who had been delegated by the firm

[ 375 Pa. Page 142]

    to perform this professional service. Neither decedent nor Mr. May had ever met either Mr. Beal or Mr. Ittel before this time. Decedent was conducted by Mr. May into Mr. Ittel's office. It was testified by Mr. Ittel that for approximately an hour he went over the will with decedent alone in his office. He said that decedent told him what she wanted to do with her property and who were the members of her family and why she was making this testamentary disposition; she also told him the reason for her exclusion of contestants because they would jointly receive from decedent's husband's trust and from their father approximately $1,000,000. Mr. Ittel further testified that after going over the will carefully with decedent she expressed her satisfaction with it. Mr. Ittel then called in his secretary, Miss Esther S. Schucker. Decedent executed the instrument and Mr. Ittel and the secretary signed it as witnesses in her presence and in the presence of each other. As subscribing witnesses they later proved their signatures at the probate of the will.

After executing the will decedent, in company with Mr. May and his son, went to the trust department of the Union Trust Company, in the same building as the offices of Reed, Smith, Shaw and McClay. She there left the will, and took a receipt, and the document was placed in the bank's vault for safe keeping. The following day the bank mailed a letter to decedent, acknowledging receipt of the new will and enclosed the old 1936 will. The will remained in the bank until after decedent's death on April 11, 1947 (about fourteen months). Meantime decedent had retained a carbon copy of the will.

The testimony on behalf of contestants in support of their allegation of undue influence is wholely circumstantial. No witness of either proponents or contestants testified that Mr. or Mrs. May had ever mentioned

[ 375 Pa. Page 143]

    in their hearing the subject of will or testamentary disposition. Certainly no evidence of importunity to make any testamentary disposition by any of proponents appears in the record. The circumstantial evidence is substantially as follows: Decedent's maid, Minnie Byrd, said Mrs. May was "always bossy and domineering" toward her mother; that in April or May 1946, after the Mays left, decedent said to her, "The May's made me do something, and won't let me change it." Also, "I would like to change my will, but, they will think I am crazy." Gertrude Tucker, a nurse, testified that in January, 1946 she heard loud talking coming from the living room (where decedent was with her daughter and son-in-law) and later said decedent told her "that she wished she could undo what she had done." Agnes Maloney, another nurse, said that Mrs. May was importuning her mother to give her a letter of attorney to sign checks but that decedent refused to do so. Ina Johnson, a nurse, testified that Mrs. May was rude, abrupt and argumentative with her mother. She also testified that she had found torn check stubs in a waste basket after decedent's death, indicating that checks had been drawn by decedent to the order of the son's widow and to contestants, but had been destroyed by the daughter. There was also testimony that one of the contestants had endeavored to cash the checks at the bank, the day after the death, but could not do so because of decedent's death. Catherine Dillon, another nurse, who daily bathed and massaged decedent, said that on the day, February 6, 1946, when decedent executed the will, she was crying and unsettled and said she was going to town with Mr. May and her grandson because "she had to go." Elizabeth Boe, a nurse at a hospital where decedent was a patient from October 17, 1946 until early January, 1947 testified that the daughter

[ 375 Pa. Page 144]

Florence was a patient in another room in the hospital and telephoned her mother, permitting her to believe she was in Steubenville; that she directed the nurse not to permit the son's widow to visit her mother except in the presence of a member of the May family; Lila C. Carney, a beautician, said she heard frequent arguments between the mother and daughter but on cross-examination did not relate a single incident wherein the daughter had prevailed. She also testified that the daughter, after the death, attempted to bribe her to become proponents' witness. Dennis Robinson, decedent's chauffeur, testified that the daughter was bossy and domineering toward her mother; Marie Labuda, a hospital nurse, heard the daughter call her mother "an old fool" and that when her mother would not do as the daughter wanted she would use profane language towards the mother. Mr. Ruslander, a highly reputable member of the Allegheny County bar, who had been decedent's attorney, testified that after the son's death he made a condolence call, and she told him that she knew of her late son's dissatisfaction with the 1936 will but that she was going to correct this by a codicil or by gifts. The above testimony constituted the basis of this will contest.

In our recent decision of Williams v. McCarroll, 374 Pa. 281, 97 A.2d 14, Mr. Justice BELL exhaustively reviewed the field of will contests: when issues devisavit vel non should be granted or refused, the functions of hearing judges and of juries in such issues, and when, after a trial and verdict, a judgment non obstante veredicto ...

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