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KERR v. O'DONOVAN (06/28/57)

June 28, 1957

KERR
v.
O'DONOVAN, APPELLANT.



Appeal, No. 8, March T., 1957, from decree of Orphans' Court of Fayette County, Dec. T., 1952, No. 79, in case of Donald H. Kerr v. Clarence F. O'Donovan et al. Decree affirmed.

COUNSEL

Samuel J. Feigus, with him Harrison & Louik, for appellant.

Henry R. Beeson, with him Donald M. Higbee and Higbee, Lewellyn & Beeson, for appellee.

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

Author: Jones

[ 389 Pa. Page 617]

OPINION BY MR. JUSTICE BENJAMIN R. JONES

This appeal in a will contest raises two principal questions: whether the court below erred (1) in withdrawing the question of undue influence from consideration by the jury and (2) in refusing a new trial after a jury verdict finding that the deceased had testamentary capacity.

Agnes O. Duncan, whose will is the subject of this controversy, died January 1, 1951, aged 62 years, at Connellsville State Hospital, Fayette County, Pennsylvania. Decedent - a widow whose husband predeceased her on November 28, 1950 - left to survive her, as those entitled to take from her under the Intestate Laws, two brothers three nieces and six nephews, of the latter of whom proponent was one.

For several years prior to her death the decedent was seriously ill, afflicted with a heart condition accompanied by hardening of the arteries and edema or dropsy. On Monday, November 27, 1950, her condition became so serious that, at the direction of her attending physician, she was removed from her home at Little Summit, Fayette County, to the Frick Memorial Hospital

[ 389 Pa. Page 618]

    at Mt. Pleasant where she remained until December 22, 1950. During most of that time she was a very seriously ill woman. From December 22, 1950, until December 31, 1950, she stayed at her home and then removed to the Connellsville State Hospital, where she died shortly after admission.

On the day following her initial removal to the hospital decedent's husband, Partick Duncan, while visiting her at the hospital, died very suddenly.

After decedent's death a written instrument purporting to be her last will and testament was presented for probate and probated by the Register of Wills of Fayette County on January 5, 1951. Letters testamentary thereon were granted to Donald H. Kerr, executor. This written instrument, handwritten throughout, reads as follows:

"November 29, 1950

Mt. Pleasant, Pa.

"I, Agnes O. Duncan, being of sound and disposing mind, do hereby revoke any and all prior wills made by me and direct that all my property is devised and bequeathed as follows:

"1. My funeral expenses and just debts are to be paid

"2. The entire residue of all my property, both real and personal, I Leave to my nephew, Donald H. Kerr.

,

,

,

,

, ...

"Donald H. Kerr, my nephew, is to be my sole executor

(s) Agnes O. Duncan

"Attest:

(s) Eleanor E. Roland

1141 S. Pittsburgh St.

Connellsville, ...


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