Appeals, Nos. 225 and 226, March T., 1954, from decree of Orphans' Court of Allegheny County, 1950, No. 1327, in Estate of Toma Skrtic, Deceased. Decree affirmed. Appeal by proponents from decision of Register of Wills refusing probate of will. Before BOYLE, P.J., without a jury. Adjudication filed finding lack of testamentary capacity and decree entered dismissing appeal; exceptions to adjudication dismissed and final decree entered, before BOYLE, P.J., COX and RAHAUSER, JJ., opinion per curiam. Proponents appealed.
Edward J. Mcginness, with him Walter L. Riggs, for appellants.
Fred C. Houston, Jr., with him Houston & Houston, for appellees.
Before Stern, C.j., Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. CHIEF JUSTICE HORACE STERN
Following the filing of a caveat, a writing dated March 16, 1950, signed by mark and subscribed by three witnesses, was offered for probate as the will of the decedent, Toma Skrtic. A hearing was held by the Deputy Register of Wills who refused the application for admission of the alleged testamentary paper to probate. The proponents of the will appealed to the Orphans' Court where, a jury trial having been waived (Act of August 10, 1951, P.L. 1163, Section 745(c)), and considerable testimony having been taken in a hearing de novo before Judge BOYLE, he dismissed the appeal in a decree which was affirmed by the court en banc. The proponents now appeal to this court.
The alleged testator, a native of Croatia, a retired millworker who resided in the Borough of Port Vue, Allegheny County, owned, together with his wife as tenants by the entireties, two adjoining houses and lots valued at $8,000 and $5,000 respectively. These properties constituted practically his entire estate. He and his wife occupied one of the houses in which lived also his daughter, Mrs. Shuster, her husband and their son; in the adjoining house lived his son, Paul G. Skrtic, with his wife and children. Mrs. Shuster and Paul Skrtic are the proponents of the alleged will. Decedent had two other daughters, both married, - Mrs. Muselin and Mrs. Belan, - who live in Beaver County and are the contestants in these proceedings.
In October, 1949, decedent began to suffer from a carcinoma of the prostate which gradually metastasized and spread into the lung. His condition steadily deteriorated and in December of that year he was hospitalized for about two weeks. After returning home he became and remained bedfast until his death on March 17, 1950. His pains grew so agonizing as actually to cause him to grind his teeth down to the gums, and the attending physician, a Dr. Cambotti, prescribed larger and larger doses of a powerful narcotic which Mrs. Shuster administered to him, sometimes at intervals of only three or four hours or even oftener if necessary to allay his intolerable suffering. Toward the latter stage of his illness he became extremely weak, indeed entirely helpless and practically immovable in bed; he was fed only with difficulty and he required attention in the performance of all of his bodily functions. Only in the short intervals between the effects of the drugs was he able to open his eyes and hear and respond to conversation.
Unexpectedly and suddenly decedent's wife died of a heart attack in the early evening of March 12, five days before his own death. Mrs. Shuster immediately called Doctor Cambotti who, after pronouncing Mrs. Skrtic dead, went into decedent's bedroom; there Mrs. Shuster asked him for a certificate that her father was of sound mind; according to her own testimony, this was before her father told her that he wanted to make a will. The doctor thereupon asked decedent his name, the day of the week, and whether he recognized him and Mrs. Shuster; the latter translated these questions into Croatian and reported to the doctor that her father's answers were properly responsive, whereupon Dr. Cambotti gave her a certificate that Skrtic was "of sound and sane mind - well
orientated and able to conduct all business affairs." The doctor had not questioned decedent in regard to his property, his relatives, his business affairs, or his testamentary intentions. Mrs. Shuster and her husband and Paul Skrtic and his wife then drafted, as best they could, and within 15 to 45 minutes of Mrs. Skrtic's death, a proposed will in which decedent left to Paul the house in which Paul was living and to Mrs. Shuster the house in which she and decedent were living, while to his daughters Mrs. Belan and Mrs. Muselin he bequeathed "the sum of one dollar each." According to proponents' testimony decedent signed this will by mark and two witnesses subscribed their names, but, since it had not been made with an attorney present, proponents said that decedent "thought" or "felt" that it might not be legal; there is no testimony that decedent expressed such a doubt to anyone and it is perhaps more likely that it was proponents and their respective spouses themselves who were fearful that the will may not have been prepared in proper form. At any rate, on the morning of March 16th, Dr. Cambotti again visited decedent, and, at Mrs. Shuster's request, again gave her a certificate similar to the one of March 12th, stating that decedent was "of sound and sane mind - well orientated in his surroundings and persons." Mrs. Shuster testified that she had not given her father any opiate either the night before or that morning, but, after Dr. Cambotti left, she ...