W. J. Krencewicz, Shenandoah, for appellant.
Thomas B. Noonan, Mahanoy City, for appellee.
Before Rhodes, P. J., and Hirt, Ross, Gunther, Wright, Woodside and Ervin, JJ.
[ 176 Pa. Super. Page 197]
The decree of the court below is affirmed upon the following excerpts from the opinion of President Judge Gangloff:
'On December 5, 1947, there was probated before our Register of Wills a writing, bearing date May 20, 1943, as the last will and testament of Mary Kluchinsky, a widow, who died on September 27, 1947, at the
[ 176 Pa. Super. Page 198]
age of seventy seven years. On September 8 1952, almost five years after the will had been probated, an appeal from probate was entered by Albert Kluchinsky and Joseph Kluchinsky, sons of the decedent. The will so probated is a simple will, testamentary in character and in it the testatrix gives her entire estate to her daughter, Beatrice Marchini, a widow, who lived with her mother for a number of years before her death. The decedent left to survive her daughter and two sons above named and another son by a previous marriage, namely, John Burchulis * * *
'The Register of Wills Act of 1917 governs here. Section 16 of that Act [20 P.S. § 1886] provides that probate shall be conclusive upon all parties unless an appeal is taken within two years from the date of probate. While the Act does not include a proviso with respect to an allegation of fraud, it seems that where fraud (forgery) is in good faith alleged, the statutory period for appeal may be extended: In re Culbertson's Estate, 301 Pa. 438, 152 A. 540; In re Amer's Estate, 30 West L. J. 17. However that may be, the proponent expressly waived the right to object because of the delay in filing the appeal. * * *
'The proponent first offered in evidence, and properly so, the record of probate, thereby shifting the burden of going forward with the evidence upon the contestants: In re Geho's Estate, 340 Pa. 412, 17 A.2d 342; Ash's Will, 351 Pa. 317, 41 A.2d 620; Dugacki's Will, 356 Pa. 143, 51 A.2d 627. The contestants undertook this burden in the following manner: they first called the two subscribing witnesses to the will and the decedent's daughter Beatrice Marchini, all as for cross-examination, and then followed with testimony which, the contestants contend, casts doubt and suspicion upon the testimony of the two subscribing witnesses and the daughter. Upon the question of calling
[ 176 Pa. Super. Page 199]
witnesses as for cross-examination, the contestants are bound by their testimony to the same extent that they are unable to contradict it: Morris v. Halford, 352 Pa. 138, 42 A.2d 411; and to this should be added that the subscribing witnesses are to be regarded not as partisan but as the court's witnesses: In re Szmahl's Estate, 335 Pa. 89, 6 A.2d 267. Then again, the daughter would have been a competent witness otherwise; see In re Morris' Will, 349 Pa. 387, 37 A.2d 506. * * *
'The testimony of the above mentioned three witnesses does not show that the decedent in express language directed her daughter to sign her name for her but the testimony does show that the witnesses came at the request of the decedent; that the latter saw her daughter sign her name and that she thereupon made her X. The acts and circumstances surrounding the execution of the disputed will, as detailed by the daughter and the two subscribing ...