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DUROSS WILL. (04/20/59)

April 20, 1959


Appeal, No. 74, Jan. T., 1959, from decree of Orphans' Court of Berks County, No. 44986, in the matter of the estate of Margaret A. Duross, deceased. Decree affirmed.


Ralph W. D. Levan, with him Edward H. Youngerman, for appellant.

H. Ober Hess, with him Bruce L. Castor, Paul H. Edelman, and Ballard, Spahr, Andrews & Ingersoll, for appellee.

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

Author: Bell

[ 395 Pa. Page 494]


There are three questions of importance involved in this appeal: (1) Was Margaret Duross suffering from an insane delusion which directly controlled her will and caused it to be different than if the delusion had not existed? (2) What is the rule which governs a hearing Judge*fn1 in disposing of a motion for judgment non obstante veredicto, in a will contest? and (3) What is the test to be applied by an appellate Court in reviewing the entry by a hearing Judge of a judgment or decree non obstante veredicto?

Margaret A. Duross died by suicide on September 29, 1955, at the age of 45. She left a will dated August 23, 1954, which was duly proved and probated. Her signature was witnessed by a friend, Betty J. Keppley. Decedent was survived by two sisters, Mrs. M. Elizabeth Duross Hendricks and Mrs. Jane L.

[ 395 Pa. Page 495]

Duross Fitzpatrick, and by two brothers, George H. Duross and John A. Duross.

Decedent left her residuary estate, consisting of $15,142 to her closest friend, Rose-Beth Woolley. She appointed her brother, John A. Duross, Executor. Miss Woolley was also the named beneficiary in a $5,000 life insurance policy dated September 12, 1949. Decedent gave her Pennsylvania Retirement Fund amounting to $3543 to her sister, Mrs. Hendricks, and a life insurance policy in the amount of $10,000 to her 11 nephews and nieces, four of whom were children of Mrs. Fitzpatrick.

Mrs. Fitzpatrick filed a petition for citation,*fn2 alleging (a) that testatrix was not of sound mind; (b) that the will was procured by undue influence; and (c) that the will was executed under the influence of an insane delusion which had no reasonable basis.

An issue was granted and the jury found: (1) that the decedent was not of sound and disposing mind, memory and understanding at the execution of her will; and (2) that the decedent was under an insane belief or delusion at the execution of her will, and that her will was a direct offspring of such insane delusion [that everybody hated her]. No evidence of any kind or description was introduced to prove undue influence; and no one testified that testatrix was not of sound mind. On the contrary, proponents affirmatively proved by a number of lay witnesses and by two doctors - and the hearing Judge found, based upon the uncontradicted and unassailable evidence, that testatrix was of sound and disposing mind at the time of execution of her will.

The hearing Judge ordered and decreed "that the verdict of the jury shall be set aside; the will of testatrix

[ 395 Pa. Page 496]

    of August 23, 1954 is hereby declared valid non obstante veredicto." From this Decree Mrs. Fitzpatrick took this appeal.

Appellant approaches this case under the mistaken belief, which is shared by many laymen and by some members of the medical profession, that disinheriting a child or relative invalidates a will and discloses a lack of testamentary capacity, or undue influence, or insanity or an insane delusion. Of course that is not the law.

Testamentary capacity is presumed and the burden of proving lack of testamentary capacity or an insane delusion is upon those who assert it: Lauer Will, 351 Pa. 438, 41 A.2d 552; Sturgeon Will, 357 Pa. 75, 53 A.2d 139; O'Malley Will, 370 Pa. 281, 88 A.2d 69; Kerr v. O'Donovan, 389 Pa. 614, 134 A.2d 213; Williams v. McCarroll, 374 Pa. 281, 97 A.2d 14.

In Johnson Will, 370 Pa. 125, 87 A.2d 188, Johnson, an illiterate colored man 84 years of age, the father of ten children, left by will two houses and their furniture to an acquaintance who was a white woman. Johnson was suffering from senile dementia, from occasional loss of memory, and from a mental disturbance pertaining to sex. This Court sustained the refusal of an issue devisavit vel non and said (pages 127-128, 129): "... it is and always has been the law of Pennsylvania that every individual may leave his property by will to any person, or to any charity, or for any lawful purpose he desires, unless he lacked mental capacity, or the will was obtained by forgery or fraud or undue influence, or was the product of a so-called insane delusion. While it is difficult for many people to understand how or why a man is permitted to make a strange or unusual or an eccentric bequest, especially if he has children or close relatives living, we must remember that under the law of Pennsylvania

[ 395 Pa. Page 497]

'"a man's prejudices are a part of his liberty. He has a right to the control of his property while living and may bestow it as he sees fit" at his death: McCown v. Fraser, 327 Pa. 561, 192 A. 674; Cauffman v. Long, 82 Pa. 72.' ...". See to the same effect: Borsch Estate, 362 Pa. 581, 67 A.2d 119; Guarantee Trust & Safe Deposit Co. v. Heidenreich, 290 Pa. 249, 257, 138 A. 764; Higbee Will, 365 Pa. 381, 384, 75 A.2d 599.

What is testamentary capacity was once again pointed out in Williams v. McCarroll, supra. In that case the jury found in the trial of an issue devisavit vel non, that the decedent did not have testamentary capacity to make a valid will on the day on which his last will was made, and that the will was obtained by undue influence practiced upon him by the residuary legatee. The Chancellor who saw and heard the witnesses entered judgment non obstante veredicto, and this judgment was affirmed by this Court. The Court in its opinion said (page 292): "'... a decedent possesses testamentary capacity "... if he has an intelligent knowledge regarding those who are the natural objects of his bounty, of what his estate consists, and of what he desires done with it, even though his memory has been impaired by age or disease"': Franz Will, 368 Pa. 618, 622, 84 A.2d 292; also Sturgeon Will, 357 Pa. 75, 53 A.2d 139; Ash Will, 351 Pa. 317, 41 A.2d 620; Olshefski's Estate, 337 Pa. 420, 11 A.2d 487." Moreover, "Less capacity is needed to make a valid ...

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