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PAVLINKO WILL. (01/15/59)

January 15, 1959

IN RE PAVLINKO WILL.


Appeal, No. 113, March T., 1958, from decree of Orphans' Court of Allegheny County, No. 854 of 1957, in re estate of Vasil Pavlinko, deceased. Decree affirmed; reargument refused March 5, 1959.

COUNSEL

Ralph C. Davis, with him Gregory Zatkovich, for appellant.

Francis Taptich, for appellee.

Before Jones, C. J., Bell, Musmanno, Jones and Cohen, JJ.

Author: Bell

[ 394 Pa. Page 564]

OPINION BY MR. JUSTICE BELL.

Vasil Pavlinko died February 8, 1957; his wife, Hellen, died October 15, 1951. A testamentary writing dated March 9, 1949, which purported to be the will of Hellen Pavlinko, was signed by Vasil Pavlinko, her husband. The residuary legatee named therein, a brother of Hellen, offered the writing for probate as the will of Vasil Pavlinko, but probate was refuse-.

[ 394 Pa. Page 565]

The orphans' court, after hearing and argument, affirmed the decision of the register of wills.

The facts are unusual and the result very unfortunate. Vasil Pavlinko and Hellen, his wife, retained a lawyer to draw their wills and wished to leave their property to each other. By mistake Hellen signed the will which was prepared for her husband, and Vasil signed the will which was prepared for his wife, each instrument being signed at the end thereof. The lawyer who drew the will and his secretary, Dorothy Zinkham, both signed as witnesses. Miss Zinkham admitted that she was unable to speak the language of Vasil and Hellen, and that no conversation took place between them. The wills were kept by Vasil and Hellen. For some undisclosed reason, Hellen's will was never offered for probate at her death; in this case it was offered merely as an exhibit.

The instrument which was offered for probate was short. It stated:

"I, Hellen Pavlinko, of..., do hereby make, publish and declare this to be my*fn* Last Will and Testament,..."

In the first paragraph she directed her executor to pay her debts and funeral expenses. In the second paragraph she gave her entire residuary estate to "my husband, Vasil Pavlinko... absolutely".

She then provided: "Third: If my aforesaid husband, Vasil Pavlinko, should predecease me, then and in that event, I give and bequeath: (a) To my brother-in-law, Mike Pavlinko, of McKees Rocks, Pennsylvania, the sum of Two hundred ($200.00) Dollars. (b) To my sister-in-law, Maria Gerber, (nee Pavlinko), of Pittsburgh, Pennsylvania, the sum of Two hundred ($200.00) Dollars. (c) The rest, residue and remainder

[ 394 Pa. Page 566]

    of my estate, of whatsoever kind and nature and wheresoever situate, I give, devise and bequeath, absolutely, to my brother, Elias Martin, now residing at 520 Aidyl Avenue, Pittsburgh, Pennsylvania.

"I do hereby nominate, constitute and appoint my husband, Vasil Pavlinko, as Executor of this my Last Will and Testament." It was then mistakenly signed: "Vasil Pavlinko [Seal]".

While no attempt was made to probate, as Vasil's will, the writing which purported to be his will but was signed by Hellen, it could not have been probated as Vasil's will, because it was not signed by him at the end thereof.

The Wills Act of 1947 provides in clear, plain and unmistakable language in ยง 2: "Every will shall be in writing and shall be signed by the testator at the end thereof" with certain exceptions not here relevant. The court below correctly held that the paper which recited that it was the will of Hellen Pavlinko and intended and purported to give ...


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