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THOMPSON WILL. (11/12/56)

November 12, 1956


Appeal, No. 195, March T., 1956, from decree of Orphans' Court of Mercer County, Jan. T., 1954, No. 144, in the matter of estate of Mary Thompson, alias Mary C. Thompson, deceased. Decree reversed.


Geo. Hardy Rowley, with him Voorhees, Dilley, Keck & Rowley, for appellants.

Albert E. Acker, with him Brockway, Brockway & Acker, and Wherry & Ketler, for appellees.

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

Author: Bell

[ 387 Pa. Page 83]


Mary (Zuschlag) Thompson, the testatrix, died in Greenville, Mercer County, Pa., on January 21, 1954,

[ 387 Pa. Page 84]

    leaving a net estate of approximately $25,000. She was 83 years of age. Her last Will was executed on October 17, 1953, at the home of her sister, Mrs. Stitt, where she had been living since she left Sharon Hospital, Sharon, on March 2, 1953. Her Will was drawn by an attorney, Mr. L. N. Dilley, after testatrix had told him and Mr. Norman P. Mortensen, the President and Trust Officer of the First National Bank of Greenville, the persons to whom she wanted to leave her estate and the exact amount she wanted each legatee to receive. The Will was prepared by Mr. Dilley in accordance with her instructions; it was witnessed by Mr. Dilley and by Dr. Gilbert H. Diehl, who had been the decedent's physician since she came to Greenville in March, 1953. Before she signed her Will each paragraph was read to her and she expressed definitely and unequivocally her approval of each bequest. They testified that she was mentally alert and knew and understood exactly what she wanted. The trial Judge characterized Dr. Diehl, Mr. Mortensen and Mr. Dilley as "three gentlemen of unquestioned integrity".

The Stitts, who were her residuary legatees, were not present at the time testatrix executed her Will nor at the prior conferences when she discussed her proposed Will with Mr. Dilley and Mr. Mortensen; indeed they never knew the contents of the Will or that they had been left anything until after Mrs. Thompson's death. The lower Court said:

"... During both the preliminary interview conducted by Mr. Dilley and Mr. Mortensen and the interview of October 17th during which time the will was executed, Mr. and Mrs. Stitt were absent from the room and in some instances from the house. The evidence indicates that they left the room immediately after

[ 387 Pa. Page 85]

    their presentation of the visitors to Mrs. Thompson and did not return until the men had completed with the exception of the incident where Mrs. Thompson had called for Mr. Stitt to advise her on making the will at which Mr. Stitt informed her that she would have to do that herself and again left."

The contestants, Charles Toten, Ira D. Talbott and John Ramsey, were not related to testatrix but for many years had done odd jobs for her at her store in Sharon. Each of them, under testatrix's prior Will of March 15, 1950, had been bequeathed $1,000. The contestants were subsequently joined in the appeal from probate by a Masonic Lodge and a Masonic Home which had been the residuary legatees under Testatrix's Will of March 15, 1950.

At the trial of the issue devisavit vel non, the jury found that the decedent had testamentary capacity,*fn* but that the Will had been procured by undue influence practiced by Clara Stitt or Mont Stitt or both of them. The Stitts appealed and are here seeking a judgment non obstante veredicto.

Mrs. Thompson had been separated from her husband approximately 40 years and since that time, except for the last year of her life, had a confectionery store and lived in Sharon, Mercer County, Pa. She had one child, a son, Carl, who died in 1944. At the time of Mrs. Thompson's death her next of kin were her sister, Mrs. Stitt, aged 76, two other sisters, Mrs. Lizzie Ruffing and Mrs. Margaret Frye, and a brother, Charles Zuschlag. Zuschlag, Mrs. Ruffing and Mrs. Frye lived in Sharon.

Testatrix in her last Will of October 17, 1953,

[ 387 Pa. Page 86]

    which the trial Judge characterized as "a highly unnatural will", gave her sister Lizzie Ruffing $500., her brother Charles $500., her sister Margaret Frye, whom she strongly disliked, $5.00, St. Paul's Childrens' Home of West Salem Township $500., Zion Evangelical and Reformed Church of Greenville $500., St. Paul's Old Folks' Home of West Salem Township $500., and the Masonic Home at Elizabethtown, Pa., $100. She then gave her residuary estate "to my sister, Clara Stitt, and her husband, Mont Stitt". She appointed the First National Bank of Greenville as executor.

Mrs. Thompson in her prior Will dated March 15, 1950, gave $500. to the Oakwood Cemetery Association of Sharon for the preservation and care of her burial lot; $1,000. to Charles Toten, $1,000. to Ira D. Talbott, and $1,000. to John Ramsey and Jennie Ramsey, his wife, or the survivor of them. She then gave her residuary estate, two-thirds to the Shenango Masonic Lodge to establish in memory of her son, "The Carl V. Thompson Charity Fund", and one-third to the Masonic Home at Elizabethtown, Pa. She appointed the Merchants and Manufacturers National Bank of Sharon as executor under that Will.

We believe that Mrs. Thompson's last Will of October 17, 1953, instead of being a highly unnatural Will, was a very natural Will. In this Will, unlike her prior Will, she gave bequests to her sister Lizzie and her brother Charles, and the balance of her estate to her sister, Clara Stitt, and her sister's husband, who had been taking wonderful care of her during the last year of her life. It is unfortunate that she did not leave anything to Toten, Talbott and Ramsey, but as people grow older, their appreciation of prior acts of friendship and help, often wanes. The fact that in her 1953 Will she gave no bequest to the Shenango Masonic

[ 387 Pa. Page 87]

Lodge, to whom she had formerly given two-thirds of her residuary estate in memory of her son Carl, has no legal or other significance, especially in view of the fact that Carl, who was a Mason, had bequeathed all his estate, not to a Masonic Lodge, but to his mother, or in the event of her death, to his aunt, Mrs. Stitt.

It is impossible to cover briefly everything that was said by witnesses in a rambling record of nearly 900 pages. Instead, we shall first state the applicable principles of law, briefly summarize the highlights of the testimony, and then analyze the evidence and the contentions of the contestants in the light of the pertinent authorities which the contestants have clearly misapprehended.

In Williams v. McCarroll, 374 Pa. 281, 97 A.2d 14, the Court restated the principles which are now well and clearly established:

"'... It is ... the rule in Pennsylvania that in every case in which the question of testamentary capacity and the allegation of undue influence is presented to the court for determination, it is important to examine the disputed document itself to ascertain whether the testamentary scheme is natural and reasonable and in harmony with the family background.' ...

"... Moreover, where a will is drawn by decedent's attorney and proved by subscribing witnesses, the burden of proving lack of testamentary capacity or undue influence 'can be sustained only by clear and strong or compelling evidence';*fn** and this is especially so if proponents were corroborated by the attending physician: Higbee Will, 365 Pa. 381, 382, 75 A.2d 599; Franz Will, 368 Pa., supra; Sturgeon Will, 357 Pa., supra; Ross Will, 355 Pa. 112, 49 A.2d 392; King Will, 369

[ 387 Pa. Page 88]

Pa. 523, 87 A.2d 469; DeMaio Will, 363 Pa. 559, 70 A.2d 339. ...

"'Although there are a myriad of cases involving confidential relationship and undue influence, the courts have found it impossible to define precisely these terms. ... "'"Confidential relation ... appears when the circumstances make it certain the parties do not deal on equal terms, but, on the one side there is an overmastering influence,*fn** or, on the other, weakness, dependence or trust, justifiably reposed; ... In some cases the confidential relation is a conclusion of law, in others, it is a question of fact to be established by the evidence': Leedom v. Palmer, 274 Pa. 22, 25, 117 A. 410, 411, 412; Null's Estate, 302 Pa. 64, 68, 153 A. 137, 139; McCown v. Fraser, 327 Pa. 561, 564, 565, 192 A. 674, 676; Ringer v. Finfrock, 340 Pa. 458, 461, 462, 17 A.2d 348, 350." ...'": Kees, Executor v. Green, 365 Pa. 368, 374, 75 A.2d 2.

"In Phillips' Estate, 244 Pa. 35, 43, 90 A. 457, the Court said: 'When a will is attacked on the ground of undue influence, "It is necessary to bear in mind the meaning of the term ...; as a legal phrase it is used as denoting ... something violative of legal duty*fn** ... The word 'influence' does not refer to any and every line of conduct capable of disposing in one's favor a fully and self directing mind, but to a control acquired over another which virtually destroys his free agency... and ... [operates] as a present restraint upon him in the making of the will." (Caughey v. Bridenbaugh, supra, 421; Stokes v. Miller, 10 W.N.C. 241; ...

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