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FARMER WILL. (06/25/56)

June 25, 1956

FARMER WILL.


Appeal, No. 59, Jan. T., 1956, fro decree of the Orphans' Court of Bucks County, in re estate of Mary C. Farmer, deceased. Decree affirmed. Appeal from probate of will. Before SATTERTHWAITE, J. Motion of proponent that appeal be dismissed granted and final decree entered. Contestants appealed.

COUNSEL

David H. Kubert, with him J. Franklin Hartzel, M. Stuart Goldin and Levi, Mandell & Miller, for appellants.

J. Lawrence Grim, for appellee.

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

Author: Arnold

[ 385 Pa. Page 487]

OPINION BY MR. JUSTICE ARNOLD

In this will contest, tried without a jury, the contestants appeal from the refusal of their petition for an issue devisavit vel non and dismissal of their appeal from probate of decedent's will. They alleged as basis for contest: (1) forgery; and (2) undue influence practiced by proponent upon decedent, who was alleged to be so infirm and of such advanced years as not to comprehend the meaning of a will; and further alleged that proponent occupied a position of confidential relationship with decedent. The charge of forgery was abandoned, there being no testimony offered in that regard.

The court below found that no mental infirmity existed; that undue influence was not established; that there was no substantial dispute of fact; and refused an issue devisavit vel non. We have repeatedly declared that "'the chancellor's decision will not be reversed unless an abuse of discretion on his part appears'": Williams v. McCarroll, 374 Pa. 281, 299, 97 A.2d 14. See also Pusey's Estate, 321 Pa. 248, 184 A. 844. So viewed, the decree in this case must be affirmed.

Proponent, decedent's nephew, is sole beneficiary under decedent's will. The estate consists of a small amount of personalty, and real estate (decedent's

[ 385 Pa. Page 488]

    homestead) valued at approximately $25,000. The original contestants were a nephew, niece, and sister of decedent. The sister having since died, contestant Delago, her husband, was substituted as personal representative. The will was executed on October 18, 1949, at which time decedent also executed a deed conveying the realty to proponent.

Proponent introduced the will, as probated, and then rested. The only testimony offered in contest was that of contestants who called as witnesses the proponent (as on cross examination); decedent's physician; contestants themselves; and the mother of two of the contestants (the nephew and niece).

"'No right of a citizen is more valued than the power to dispose of his property by will ... His ... last and final direction should not be struck down except for the clearest reason'": Wetzel v. Edwards, 340 Pa. 121, 128, 16 A.2d 441. Thus "'where a will has been properly executed in every particular, a presumption of testamentary capacity and lack of undue influence arises, [requiring] compelling evidence to upset the will, since the law favors its validity ...


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