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MOLDEN WILL. (01/17/57)

January 17, 1957

MOLDEN WILL.


Appeals, No. 1, Jan. T., 1955, from decree of Orphans' Court of Bucks County, dated Dec. 4, 1953, No. 31654, and No. 78, Jan. T., 1957, from definitive decree of Orphans' Court of Bucks County, dated Feb. 20, 1956, No. 31654, in the matter of Estate of Kathleen Molden, also known as Katie Molden, deceased. Decreee affirmed.

COUNSEL

Symington P. Landreth, with him Frederick Ely Smith, Bertram P. Rambo, Ross & Smith, and Rambo, Knox & Landreth, for appellants.

John Leslie Kilcoyne, for appellee.

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

Author: Bell

[ 387 Pa. Page 485]

OPINION BY MR. JUSTICE BELL

Kathleen Molden, also known as Katie Molden, wrote and duly executed her last will dated January 28, 1948. It contained some additions and alterations,

[ 387 Pa. Page 486]

    but it is unchallenged and unquestioned (a) that she devised (and bequeathed) her home, 542 Bath Street, and its contents, and (b) that she bequeathed her undertaking business known as Molden Funeral Service, and (c) that she bequeathed all the balance of her estate to her son, George Molden, who was obviously and undoubtedly the primary object of her bounty. Her will was witnessed by two witnesses, but neither of them read the will or noticed whether it contained any alterations. There was no proof who made the changes which the hearing Judge found were made in two small legacies, although suspicion pointed to George Molden, the residuary legatee.

This is the second phase of a bitter will contest between the proponent, George Molden, who was a specific devisee and legatee, as well as the residuary legatee under her will, and testatrix's other children, Harry Molden, Emma L. Fischer, and Walter Molden, who are pecuniary legatees and contestants. The learned Court below (1) refused an issue, and (2) held that the interlineations, additions and erasures did not avoid or nullify the will, and (3) restored the legacies to Harry and Emma (two contestants) in the (larger) amount which their handwriting expert believed was the original amount inserted by the testatrix, and (4) resolved the ambiguity in Walter's legacy, in his favor. Contestants nevertheless appealed from the Court's Decree contending that it must be presumed that George made the alterations in the aforesaid two legacies and consequently must forfeit everything which testatrix specifically and unquestionably gave him in her will.*fn1

Mrs. Molden's will, written in her own hand, reads as follows:

[ 387 Pa. Page 487]

(Illustration omitted)

Mr. Leon W. Melcher, a handwriting expert, testified in behalf of the contestants. He testified that the words "and contents" which were inserted above the line and appear after the devise of "my home 542 Bath Street" were added by testatrix in her own handwriting. There is a presumption that additions and alterations which are made in the handwriting of the testatrix above her signature were made prior to the execution of the will: Hickman's Estate, 308 Pa. 230, 162

[ 387 Pa. Page 488]

A. 168; Gongaware v. Donehoo, 255 Pa. 502, 100 A. 264; Morrow's Estate (No. 1), 204 Pa. 479, 54 A. 313; Wikoff's Appeal, 15 Pa. 281; Hunter Orphans' Court Commonplace Book, Vol. 2, Revocation of Wills, ยง 6(d), p. 1191.

There was no evidence by either contestants or proponents to overcome this presumption, and the lower Court correctly decided that "the contents" of testatrix's home were clearly and validly bequeathed to George Molden. This conclusion is not challenged by the contestants.

The next three bequests create the trouble. Testatrix next provided:

00

"To my son Harry Molden I give $2500Xx dollars as I have given him some in my life time,"

The lower Court, in a very able opinion, said with respect to this bequest: "Immediately before and partially including the letter 'd' in the word 'dollars' appears an obvious erasure, the abrasion in part extending entirely through the paper. Within this erased space appeared the comma and the two zeros over the two xx's. These markings, together with the dollar mark and the figure '2' at the beginning of the numeral, appear*fn* to be written in different color ink than the body of the document. The other figures (500) would seem to be in the original ink."

The "2" is awkward and is out of line with the figures which follow it. If we assume that the "2" was added by the testatrix or by someone else after the will was written, it would appear to us from a visual examination of the original will aided by a magnifying glass, that the original gift was probably $500, not $5000. However, the Court found, basing its opinion

[ 387 Pa. Page 489]

    on the testimony of Melcher, that the original gift was $5000. On this point, Melcher testified as follows:

"A. My conclusion was and is that it was originally written $5,000 and subsequently changed to $2,500 by the erasure of the last naught and by the interlineation of a dollar mark and a numeral '2' and a comma at the end and two naughts over a horizontal line under which there are two cross marks, all of which writings were added with a different pen and ink, and in my opinion by a different writer, although I am not definite about the numeral '2'. I don't see anything in that particular numeral that is distinctive enough to enable me to identify it ...


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