Appeals, Nos. 191 and 198, Jan. T., 1955, from orders of Court of Common Pleas of McKean County, Dec. T., 1951, No. 84, in case of Citizens National Bank of Bradford, Pa. and Matthew Slattery et ux. v. Delevan A. McCafferty. Order refusing judgment n.o.v. affirmed; order granting new trial reversed.
W. D. Gallup, with him E. G. Potter, Robert J. Healy and Gallup, Potter & Healy, for contestant.
James F. McVay, for proponents.
Before Stern, C.j., Stearne, Jones, Bell, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE BELL
An issue devisavit vel non was tried by a Judge and jury in the Court below. The jury found that at the time of execution of the will dated July 3, 1951, Minnie S. McCafferty, the testatrix, was a person of sound and disposing mind and that the said will was not procured by undue influence, duress or constraint. Delevan McCafferty, a stepson, filed (1) a motion for judgment non obstante veredicto, which was dismissed by the Court below, and (2) a motion for a new trial, which was granted by the Court below. Thereafter each side took an appeal.
Mrs. McCafferty by her will dated July 3, 1951,*fn1 left one-half of her estate to her stepson, Delevan A. McCafferty, who lived in San Diego, California, and whom she had not seen since her husband's death in 1943, and the remaining one-half of her estate to her nephew, Matthew F. Slattery, Jr., and Violet L. Slattery, his wife, who nursed her through her long last illness. Although testatrix had executed a will on April 3, 1939, in which she left all of her estate to her stepson, Delevan A. McCafferty, her 1951 will could not be said to be (as the stepson contends) an unnatural will, nor - as between the stepson on the one hand and her nephew (the son of her own brother) and his wife on the other hand - was the latter a stranger to the blood, as that expression is used in our cases.
The voluminous testimony may be thus summarized:
Minnie S. McCafferty died September 12, 1951, at the Emery Hotel, Bradford, Pa., where she had been living since February 1951. She was 76 years old. She had had a cerebral vascular accident in November, 1950, which required hospitalization until February, 1951. Her left side was paralyzed and she was crippled by a bad arthritic condition in her knees, fingers and arms. Her activities were confined to a wheelchair, although several times a week she would be taken out for an automobile ride. While she was in the hospital she was at times confused and her memory was impaired. After she was discharged from the hospital in February 1951 and moved to the Emery Hotel, she made a "very radical improvement" in her mental condition and according to proponents' witnesses had thereafter a clear, normal, keen mind. The only evidence
to the contrary, such as it was, was that of a "night sitter".
The proponents of the will, Mr. and Mrs. Slattery, who called Mrs. McCafferty "Aunt Min", proved - (1) by the attorney who at Mrs. McCaffery's request drew and witnesses the will and (2) by Dr. R. K. Russell, the other subscribing witness, who had known her for forty years and had been her doctor since 1935, and who at her request saw her almost daily for the last ten months of her life, that Mrs. McCafferty was of sound and disposing mind, memory and understanding on July 3, 1951, at the time of the execution of the will. Dr. Russell likewise testified that on that ...