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GLESENKAMP WILL (09/27/54)

September 27, 1954

GLESENKAMP WILL


Appeal, No. 58, March T., 1954, from decree of Orphans' Court of Allegheny County, 1951, No. 5835, in Estate of Joseph A. Glesenkamp, Jr., deceased. Decree affirmed. Appeal from probate of will. Before COX, J., without a jury. Adjudication filed sustaining appeal; exceptions to adjudication dismissed and final decree entered, before BOYLE, P.J., COX and RAHAUSER, JJ., opinion by COX, J. Proponent of will appealed.

COUNSEL

Paul Kern Hirsch, with him C. John Tillman and Hirsch & Weise, for appellant.

George S. Goldstein, with him Charles H. Fulton and Morris F. Cohen, for appellees.

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

Author: Stearne

[ 378 Pa. Page 636]

OPINION BY MR. JUSTICE ALLEN M. STEARNE

The Orphans' Court of Allegheny County sustained an appeal from the probate of a will by the Register on the ground that decedent did not possess testamentary capacity. This appeal followed.

Joseph A. Glesenkamp, Jr., the decedent, died December 2, 1951, unmarried, with next of kin consisting of twenty-two first cousins. The probated will is dated October 31, 1951. It was prepared by a lawyer and witnessed by a bank officer and decedent's physician. The will devised and bequeathed his entire estate to Villette O. Carson, the proponent, a first cousin, the appellant. Decedent's attorney was named executor.

The issues presented by the appeal are: (a) testamentary capacity (b) undue influence and (c) forgery.

Counsel withdrew the request for an issue devisavit vel non and stipulated that the case should be heard and decided by Judge Cox. This procedure is authorized by Act of April 22, 1874, P.L. 109, § 1, 12 PS § 688. No question has been raised as to the regularity of this procedure. The findings of fact are, therefore, equivalent to a verdict of a jury. On appeal the function of an appellate court is to determine whether or not the hearing judge's findings of fact and conclusions of law, approved by the court in banc, are sufficiently supported by the evidence.

Judge Cox, which skill and patience, heard the testimony. The printed record, in three volumes, is over

[ 378 Pa. Page 6371850]

pages in length. With meticulous care he made an exhaustive analysis of the evidence. After considering the evidence in connection with the applicable principles of law he concluded and found that Joseph A. Glesenkamp, Jr., the decedent, at the date of the execution of the questioned will, did not possess testamentary ...


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