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April 21, 1958


Appeals, Nos. 14 to 23, inclusive, Jan. T., 1958, from decree of Orphans' Court of Montgomery County, No. 56657, in re estate of Ermindo Masciantonio, deceased. Decree reversed; reargument refused May 28, 1958.


Francis T. Dennis, with him Walter E. Alessandroni, for appellants.

Richard S. Lowe, with him James R. Caiola, Bernard V. DiGiacomo and DiGiacomo & Lowe, for appellees.

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

Author: Jones

[ 392 Pa. Page 364]


Decedent, aged 69 years and a resident of Conshohocken, Pa., died July 21st, 1955 in the Sacred Heart

[ 392 Pa. Page 365]

Hospital in Norristown, Pa. His immediate survivors - all residents of Italy - were his widow, Rosa Masciantonio, and nine nephews and nieces.

On August 2, 1955, a written instrument purporting to be the decedent's last will was admitted to probate by the Register of Wills of Motgomery County and letters testamentary were issued to the executor named therein, the Montgomery Norristown Bank and Trust Company. From the decree of probate the decedent's widow appealed. After a hearing*fn1 the Orphans' Court of Montgomery County sustained the Register's action and these appeals were taken.

The decedent came to the United States from Italy in 1905, leaving his wife in that country.*fn2 Although decedent and his wife never lived together again the record reveals that decedent over many years, with the exception of the war years, forwarded money from time to time to his wife who lived on a farm which decedent owned in Italy. The decedent's original intention may have been to return to Italy, but, after World War I, he continually hoped to bring his wife to the United States, an expectation never realized because of his failure to become a U.S. citizen.

Decedent always resided in Conshohocken, for about 24 years with the D'Allesandro family - the first Mrs. D.'Allesandro having been a relative - and the rest of the time alone. A long time employee of the Allen Wood Steel Company, the record portrays decedent as

[ 392 Pa. Page 366]

    a frugal, exceedingly industrious and somewhat retiring person. Approximately three weeks prior to July 10th, 1955 he became ill. On July 10th, 1955 he was admitted to the hospital where he remained until his death on July 21st, 1955.The cause of death was carcinoma of the liver attended with hepatitis, inflammation of the liver and jaundice.

The will, the validity of which is attacked, appears on a typewritten instrument, dated July 20th, 1955, executed by decedent by mark and bearing the signatures of two subscribing witnesses, the scrivener and the sole residuary legatee. Proponents claim that this will was executed at approximately 4 P.M. on July 20th, 1955 - about seventeen (17) hours prior to decedent's death.

The alleged will contains: (1) a direction that the decedent's debts and funeral expenses be paid; (2) specific devises of four separate pieces of realty, one to each of four named persons described as "nephews" and "nieces";*fn3 (3) a bequest of $3,000 to a Conshohocken church; (4) a gift of the entire residuary estate to one Rose Benedict;*fn4 (5) a direction that each devisee and legatee pay his or her proportionate share of the taxes; (6) a direction that, even though the decedent gave under the will nothing to his wife, yet, in the event that the wife should successfully assert a right against the estate,*fn5 the shares of each legatee and devisee should be proportionately diminished; (7) the appointment of the Montgomery Norristown Bank and Trust Company as executor.

[ 392 Pa. Page 367]

A three-fold attack is made on this alleged will: that at the time of its execution decedent lacked testamentary capacity, that the will was procured by undue influence and fraud, and that it was not legally executed in that one of the two witnesses to decedent's signature by mark, the sole residuary legatee, was incompetent to act as such witness.

In reviewing this decree of the court below we are mindful that the findings of an Orphans' Court judge, who heard the testimony without a jury, are entitled to the weight of a jury's verdict and are controlling upon us and that its decree should not be reversed unless it appears that the court has abused its discretion: Williams v. McCarroll, 374 Pa. 281, 298, 97 A.2d 14. See also: Kerr v. O'Donovan, 389 Pa. 614, 629, 134 A.2d 213; Farmer Will, 385 Pa. 486, 487, 123 A.2d 630. However, we are also mindful that if it appears from a review of the record that there is no evidence to support the court's findings or that there is a capricious disbelief of evidence the court's findings may be set aside: Mohler's Estate, 343 Pa. 299, 305, 22 A.2d 680. The test is not whether we, the appellate court, would have reached the same result had we been acting as the hearing judge who saw and heard the witness, "'but rather whether a judicial mind, on due consideration of the evidence, as a whole, could reasonably have reached the conclusion of the chancellor'": Shuey et al., Exrs. v. Shuey et al., 340 Pa. 27, 32, 16 A.2d 4.

The determination of the propriety of the instant decree necessitates our review of the entire record.

Proponents offered in evidence the record of probate and then rested. Upon contestant was then imposed the "duty to come forward with evidence": Kerr v. O'Donovan, 389 Pa. 614, 623, supra, and cases therein cited. In performance of this duty the contestant

[ 392 Pa. Page 368]

    produced twelve witnesses:*fn6 decedent's two attending physicians, two nurses, his widow, three relatives and four friends.

Contestant's evidence may be thus summarized:

(1) Margaret D'Allesandro - stepmother of the four specific devisees - had known decedent for approximately 20 years, during 15 years of which he lived in the D'Allesandro home while she lived there. At decedent's request, on or about July 10th, 1955 she called Dr. Rappaport, arranged for decedent's hospitalization and drove decedent to the hospital. Prior to decedent's departure for the hospital he gave her approximately $400 for the payment of taxes on his realty, at least part of which was applied to that purpose. During the first four or five days of decedent's hospitalization, she conversed with him, either by actual visitation to him or on the telephone, although after July 15th he did not answer the telephone. During her last telephone conversation with decedent he complained he was being "pestered" about making a will. On July 19th she remained at the hospital from 1:30 P.M. to 6 P.M.; at various times that afternoon Rose Benedict,

[ 392 Pa. Page 369]

Michael Masciantonio (Rose Benedict's father), Peter Masciantonio and Joseph Gennaro arrived. They all left the hospital together. While all were in the hospital Dr. Carfagno informed them that decedent was then critically ill. While they were conversing in the hospital corridor a visiting priest came by; in their presence Rose Benedict spoke to the priest, stating that the decedent did not have a will, and the priest said that "someone ought to get it made". The next day - July 20th - when she visited decedent he was "kind of sleeping steadily". Prior to his departure for the hospital decedent told her that he was going to straighten out his affairs and that "his wife won't be poor anymore". This witness testified that Rose Benedict, residuary legatee, never visited decedent at his home.

(2) Peter Masciantonio - decedent's first cousin, once removed, and a fellow worker - when he visited decedent on July 13th, found his condition seemingly good, although he was jaundiced. On July 19th decedent was asleep and the witness was unable to secure any response from him, except a shake of the head. He described the difficult time he had in putting pajamas on decedent on that date because of the latter's inability to cooperate. He corroborated Mrs. D'Allesandro's testimony concerning the conversation in the hospital corridor between the priest and Rose Benedict. From his observations on July 19th decedent was then unable to make a will. He denied that Attorney DiGiacomo, the scrivener, was at the hospital at 5:45 P.M. on July 19th.

(3) Laura Ambirg - decedent's friend of almost 40 years - stated that, in April or May, 1955, when decedent was contemplating the purchase of another piece of realty, she asked him what would happen if he died and decedent replied "I guess my wife take it".

[ 392 Pa. Page 370]

(4) Joseph Gennaro - decedent's friend and neighbor - visited the decedent on July 19th and found him mumbling and too ill for any conversation.

(5) Marion Manfredi - nurse on duty from 7 A.M. to & P.M. - testified that decedent was fed intravenously the last few days of his life, that on July 18th he was lethargic and on July 19th and 20th he was "dozing at long intervals".

(6) Caroline Monastero - nurse on duty from 11 P.M. to 7 A.M. - stated that while she was on duty decedent was apparently always sleeping.

Contestant's principal testimony came from Dr. Rappaport, the attending physician, and Dr. Carfagno, a consulting specialist in internal medicine, both admittedly qualified. Dr. Rappaport - to whom decedent was then unknown - in response to a call had decedent admitted to the hospital on July 10th, 1955. Because of decedent's physical condition, the doctor had great difficulty in securing from his a complete history. He did learn, however, that decedent, although he had continued to work, had been feeling quite ill for three weeks. Even though the decedent was jaundiced and apparently very ill, it was the opinion of this doctor that then decedent could recognize people and knew the extent of his property. From the date of his admission on July 10th until the date of his death on July 21st Dr. Rappaport saw decedent at least once, sometimes twice, daily. On July 17th Dr. Rappaport called in Dr. Carfagno for consultation. On the date of the alleged will - July 20th - he visited the decedent on two occasions, at 11 A.M. and 5 P.M. - five hours before and one hour subsequent to the time the will allegedly was made. On both occasions decedent was stuporous,*fn7 dying, too weak to talk and, on the occasion

[ 392 Pa. Page 371]

    of the second visit, decedent was semi-comatose, but not completely unconscious. Dr. Rappaport stated that the decedent could not have had a lucid interval and did not have the mental capacity to express himself. From the observations made by Dr. Rappaport of the decedent on these two occasions on July 20th, 1955 he stated that the decedent did not have the mind, the memory nor the understanding to be able to dispose of his property by will and was "absolutely not in a condition to give such information". Dr. Rappaport, from his observations, further stated that decedent could not have made a will on July 17th, July 18th, or July 19th.

Dr. Carfagno visited decedent on July 20th between 1:30 P.M. and 2:00 P.M. - approximately two hours prior to the time the will is alleged to have been made. From his observations of decedent the doctor stated that on this occasion the decedent was either lethargic or stuporous, probably the latter, and was not able, physically or mentally, to make a will. Based upon his observations, Dr. Carfagno testified that it was "possible, but not likely" that decedent could have been conscious prior to his visit, that it was "possible, but not very probable" that decedent could have recognized visitors at 6 P.M. that day and that decedent was not "lucid" when he saw him on July 20th.

When contestant rested, the proponents produced witnesses, all of whom, with possibly one exception,*fn8 had an interest in the outcome of this litigation.

(1) Peter D'Allesandro - decedent's grandnephew and a specific devisee - until his marriage in 1942 lived in the same house with the decedent.*fn9 Within two

[ 392 Pa. Page 372]

    years of his death decedent told him that upon his death he would leave him the property situated at 6th and Maple Streets, Conshohocken. When he visited decedent at approximately 7:15 P.M. on July 20th Rose Benedict and another woman were present and, although decedent "didn't look too good", he was sitting up in bed. Although this witness testified to certain responsive answers made by decedent to him, yet he continually modified and qualified such testimony by saying "I didn't know what he was saying". That evening, as he had done on several other occasions, he shaved the decedent. Upon cross-examination he admitted that, even though he was so described in the will, he was never known as "Peter D'Allesandro, Jr."

(2) Eva D'Allesandro - a specific devisee's wife - stated that decedent visited their home every Friday and some years ago - 1946, 1947 or 1948 - told her that she and her husband would have a store in the property later given to her husband by this will.When she visited decedent on July 10th, in company with her husband, he seemed well, even to the extent, during the course of a discussion, of urging her husband to buy her an electric range. In company with her mother-in-law, after decedent's death, she searched decedent's living quarters and there saw a savings bond issued in Marie D'Allesandro's name. On her husband's return from the hospital on July 20th he described the decedent as "kind of ... like dopey".

[ 392 Pa. Page 373]

(3) Ann M. Bernardini (the former Ann D'Allesandro) - a specific devisee - visited decedent on July 12th and on July 14th talked with him on the telephone, and on both occasions he seemed rational.

(4) Mary E. Donato (the former Marie D'Allesandro - a specific devisee - stated that on a visit to decedent on July 12th he appeared rational.

(5) Nicholas D'Allesandro - a specific devisee - on a visit on July 19th found that, while decedent did not feel well, he was able to recognize him, appeared rational and discussed with him a recent visit made to decedent by a fellow-worker.

(6) Rose Benedict - first cousin, once removed and sole residuary legatee - testified that over a three-year*fn10 period she drove her father to and from work at the Allan Wood Company. During this time period approximately once a week she would pick up decedent and take him to work and almost daily would drive him home with her father. On July 19th, on the occasion of a visit to the hospital, she had a talk with Peter Masciantonio and, while talking to him in the hospital corridor, a visiting priest came along. She testified that it was Peter Masciantonio, not herself, who suggested to the priest that decedent, then critically ill, had no will. The priest then went into decedent's room and told him he should get a lawyer and make a will. Later the decedent backoned to her and asked her to get a lawyer for him. Mrs. Benedict said that she left the hospital at 4 P.M., called Attorney DiGiacomo at approximately 4:30 P.M., but did not reach him until 5 P.M. She then accompanied Attorney DiGiacomo, her father and Marta Giondonato to the

[ 392 Pa. Page 374]

    hospital, arriving there at approximately 5:45 P.M., and she remained in the decedent's room while the attorney and decedent discussed a will and she saw the attorney writing on a yellow piece of paper. After the attorney had finished she saw the decedent make his mark on the paper, then she signed her name as a witness under the attorney's name. This handwritten will (not the one presently in issue) was produced and the witness identified her signature thereon. When these events took place the decedent recognized and talked with his visitors. On July 20th, between 3:30 and 4 P.M., she accompanied Attorney DiGiacomo to the hospital, heard him read to decedent the provisions of the typewritten will and, after she saw the decedent execute it by mark, she signed that will as a witness.

At the outset of her testimony she stated that she visited decedent daily while he was in the hospital, then later said she did not visit him between July 12th and July 19th, and again later stated she was confused about the dates but knew there was not a seven day interval between her visits. On July 19th decedent was "pretty sick", "dozing", and the witness "didn't bother talking to him"; on that date her father and Peter Masciantonio took decedent to the bathroom. When Attorney DiGiacomo and the other persons entered decedent's room on July 19th she introduced the attorney and the decedent recalled that the attorney's brother had once worked with him. While there was some Italian spoken, the conversation between Attorney DiGiacomo and decedent on July 19th was mostly in English, but on July 20th the will was read to decedent only in English. It was the decedent's custom to sign papers by mark.

(7) Marta Giondonato - a recent Italian immigrant - spoke and understood only the Italian language. This witness was present on July 19th in decedent's

[ 392 Pa. Page 375]

    hospital room when the decedent and Attorney DiGiacomo discussed the terms of the will. This witness, when asked whether most of the conversation between the attorney and the decedent concerning the will was in English or Italian, testified: "It was in Italian.Otherwise I would not have been able to understand."*fn11 The witness related that she heard decedent tell the attorney that he had four houses and wanted to give one house to each of four nieces and nephews, that he wanted Rose Benedict to take care of his funeral, that whatever was left was to go to Rose Benedict and that he was leaving his insurance to his wife in Italy. Having seen the decedent place his mark on the will, she, at decedent's request, signed her name as a witness on the instrument. On July 20th she visited the decedent at the hospital but was not present when the typewritten will was executed.

(8) F. C. Hutchinson, Vice-President of the executor bank, stated that decedent's realty was valued at $42,250.00 and his personalty, exclusive of bonds, at $14,250.97. In decedent's home were found, Series E. bonds in the amount of $6500; 1 $100 bond, issued August 1942, in decedent's name payable on death to "Annie D'Allesandro"; and 240 $25 bonds, issued between October 1942 and July 1955, in decedent's name payable on death to "Marie D'Allesandro". On August 10, 1955 he had a conversation with Eva D'Allesandro, a witness for contestant, wherein she stated that, prior to his departure for the hospital, decedent had given

[ 392 Pa. Page 376]

    her approximately $400 to pay taxes ...

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