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December 29, 1953



Russell S. Machmer, Sunbury, for appellants.

Robert McK. Glass, Samuel Gubin, Sunbury, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Ross, Wright and Woodside, JJ.

Author: Hirt

[ 174 Pa. Super. Page 268]

HIRT, Judge.

In this will contest the lower court refused to grant an issue devisavit vel non. The question here is whether there is a substantial dispute as to decedent's testamentary capacity on June 2, 1950. In her will executed on that date she gave her home in Mount Carmel to her son Michael Dovci. She died on August 28, 1951, at age 73. The above real estate comprised the whole of her estate and the effect of the devise was to disinherit her two daughters, the appellants herein.

The granting of an issue devisavit vel non is not a matter of right; there must be a substantial dispute which can be determined only from a consideration of the evidence as a whole. And on appeal from the refusal of an issue, the chancellor's decision will not be reversed unless an abuse of discretion appears. Franz Will, 368 Pa. 618, 84 A.2d 292; Johnson Will, 370 Pa. 125, 87 A.2d 188. The test as to the propriety of granting an issue devisavit vel non is whether there is testimony sufficient both in quantity and quality to raise a substantial dispute of fact. In re Zakatoff's Will, 367 Pa. 542, 81 A.2d 430; In re Sturgeon's Will, 357 Pa. 75, 53 A.2d 139. But in determining whether an issue should be granted the hearing judge may not constitute himself the jury; if a substantial factual dispute exists, the issue must be granted even though the verdict may be at variance with the opinion of the judge. In re Lare's Estate, 352 Pa. 323, 42 A.2d 801. 'The rule is firmly established that the judge of the orphans' court conducting the hearing on an appeal for the granting of an issue d.v.n. is not to constitute himself the jury, that is, to decide the case as he would if acting in the capacity of an ultimate fact-finding tribunal; his function is to determine whether there is a substantial dispute upon a material matter of fact, and such a dispute exists if a verdict that might be reached by a jury, even if at

[ 174 Pa. Super. Page 269]

    accused the Jeffersons of setting them off in her house. She accused them also of stealing her furnishings and complained that they were cutting her carpets with razor blades. Beginning in 1944 she was convinced that Jefferson was shooting a gun in the house and accused him of trying to kill her. At other times she imagined that the Jeffersons were plotting to kidnap her. These were hallucinations, without the slightest foundation in fact, but they were real in the mind of testatrix. In 1947 she made an information before a justice of the peace charging the Jeffersons with imagined violence against her. No hearing on the charges was ever held. Beginning in 1949 testatrix accused them of trying to poison her; she then began preparing her own food and she refused to eat with them for about a year before her death. In February 1949 she suffered a stroke which, although not wholly incapacitating, caused sluggishness in the functioning of both her mind and body. In April 1951 she was rescued by the police from the porch roof of her house. She had crawled out onto the roof and had threatened to commit suicide by throwing herself to the ground. In lieu of rent the Jeffersons had shared with testatrix the cost of maintaining the household. Because of her fears of violence at their hands she a number of times had asked the Jeffersons to move out of her house. In 1949 she instructed her lawyer Joseph H. Deppen to start eviction proceedings because, according to his testimony, she told him that 'They are bombing her all the time * * * they shoot at her * * * they put poison in her coffee * * * [and] around the inside of the room, where she sleeps.' No proceeding was brought and the Jeffersons did not leave the house except on one occasion for a period of about three months. Mr. Deppen drew a will for this decedent in 1943 in which she divided her estate equally among her three children. In 1950

[ 174 Pa. Super. Page 271]

    she asked him to draw a new will giving her entire estate to her son. He refused because he thought she then was not 'in shape to make a will.' The proponents and their witnesses do not suggest that the withdrawal of the Jeffersons from the household would have restored testatrix' equilibrium. On the contrary it in substance appears to be conceded that Mary was needed in the home to care for her mother. In June 1950 Carleton M. Strouss, Esq., who was then representing Mary Dovci, and who as scrivener later drew the questioned will, advised Mary to stay because her services were needed by her mother although he had been instructed by testatrix to notify the Jeffersons to move from the house.

There is corroboration of Mary and her husband, as to some of the hallucinations entertained by her mother, in the testimony of a neighbor and five other witnesses who were acquaintances or friends of long standing. Anna Schwink, testatrix' other daughter, an appellant herein, testified that her mother complained that Mary was poisoning her; was damaging her property and stealing her goods. Anna stated that during June 1950, the month in which the will was made, her mother's conversations were not rational.

Dr. Robert E. Allen was the family physician and he saw relatrix frequently between February 1940 and July 10, 1951. He gave a statement on March 6, 1950 to the scrivener who drew the will to this effect: 'Today, I examined Mrs. Mary Dovci. I find her to be of sound mind -- though sluggish in her thinking. I have examined her many times in the past and on every occasion found her sound in mind.' He testified however that decedent did complain to him that her son-in-law was poisoning her. He ...

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