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ERDELJAC WILL. (04/22/57)

April 22, 1957

ERDELJAC WILL.


Appeal, No. 79, March T., 1957, from decree of Orphans' Court of Allegheny County, 1954, No. 2587, in re estate of Thomas or Tomo Erdeljac, deceased. Decree affirmed.

COUNSEL

Harry J. Schmitt, for appellant.

Edward J. I. Gannon, with him Hazlett, Gannon & Walter, for appellee.

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

Author: Musmanno

[ 388 Pa. Page 327]

OPINION BY MR. JUSTICE MUSMANNO

On March 12, 1951, Tomo Erdeljac executed a will in which he, inter alia, bequeathed $500 to his friend of many years, Joe Podnar. On May 13, 1954, he executed

[ 388 Pa. Page 328]

    another will in which he cancelled out his legacy to Joe Podnar by leaving everything to his cousin, Joseph Mechon. One month later he died and the second will was probated. Joe Podnar appealed from the probate of the will and has since waged a battle for his lost $500 which, in point of money spent, time consumed, and energy expended, must exceed in value the extent of the modest bequest. Whether it be moral principle or financial interest which spurs his legal protest is beside the point. He is entitled to have his claim adjudicated and, accordingly, we have before us for final decision his complaint that Joseph Mechon induced, through improper means, Tomo Erdeljac to "forget" his friend Podnar.

The Court below, after a non-jury trial on the merits of the appeal from the probate, decided that Joseph Mechon did not exercise such undue influence on Tomo Erdeljac as to invalidate the creation of his mind of May 13, 1954. We thus have before us a simple question: Does the record support the lower Court's decision? We believe that it does. Joe Podnar builds his case on incidents, episodes, and observations, none of which in itself or in combination with all the others, demonstrates such a weakening of mind as would justify the assertion that Erdeljac did not know what he was doing when he substituted Mechon for Podnar in his will.

As evidence of Erdeljac's physical and mental infirmities, Podnar calls attention to the fact that Erdeljac was eighty years old when he affixed his signature to his second will, that he was forgetful about his pipe and tobacco, that he told long stories about his relatives in Yugoslavia, that he drank to excess, and that he was untidy in his personal attire. Practically all these charges, with the exception of the reference to age, were refuted by witnesses who testified in behalf

[ 388 Pa. Page 329]

    of the proponent of the will, but even if they were accepted as true, they would not, singly or in the aggregate, build up a battering power of sufficient strength to topple the presumption that a testator has not been unduly influenced, once it is established (which was not contested) that he possessed the necessary testamentary capacity and that the will ...


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