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MASCIANTONIO WILL. (05/08/59)

May 8, 1959

IN RE MASCIANTONIO WILL.


Appeals, Nos. 62, 63, 64, 65, 66, 67, 68, 69, 70 and 71, Jan. T., 1959, from decree of Orphans' Court of Montgomery County, No. 56657, in re estate of Ermindo Masciantonio, deceased. Decree reversed, and opinions filed April 20, 1959. Petition for reargument denied May 8, 1959 and amended opinions filed. Review of record in will contest upon direction by Supreme Court after contestants from probate of will had appealed to Supreme Court. Adjudication filed dismissing contestants' appeal from probate of will, and decree entered, adjudication by TAXIS, JR., P.J. Contestants appealed.

COUNSEL

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

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

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

Author: Jones

[ 396 Pa. Page 18]

OPINION BY MR. JUSTICE BENJAMIN R. JONES

For the second time we are called upon to determine questions arising out of an attack on the validity of this will. On the first appeal (Masciantonio Will, 392 Pa. 362, 141 A.2d 362) we reversed the Orphans' Court of Montgomery County and directed "that the court below review the entire record in a manner consistent with [our] opinion with special reference to the relative weight to be accorded the testimony of the two physicians who attended the decedent during his last illness or, in the alternative, that the court exercise its discretion by directing a jury's determination of the issue of testamentary capacity under proper instructions in keeping with [our] opinion upon a retrial; ...." The court below, upon the return of the record from this Court, once again upheld the validity of the will, found that the decedent at the time of execution of the will did possess testamentary capacity and dismissed the appeal from the probate of the will. These appeals from that decree were then taken.

The facts and circumstances surrounding the execution of this will are fully set forth in our previous opinion and need not be repeated herein.

In the court below at the outset of this will contest the parties failed to demand a trial by jury and waived thereby their right to such trial in the event the court found that a substantial dispute of fact existed concerning the validity of the will; § 745(a), (c), of the

[ 396 Pa. Page 19]

Orphans' Court Act of 1951,*fn1 as amended. Despite this waiver of the right to a jury trial the court below had the right in its discretion to require a trial by jury of any of the issues of fact: § 745(d) of the Orphans' Court Act of 1951, as amended, supra. The court below did not sit to determine preliminarily whether or not there existed such a substantial dispute of fact on the issue of decedent's testamentary capacity so as to justify a trial by jury as a matter of right, but rather as the ultimate fact-finding tribunal.*fn2

In considering this case a second time on appeal we do not alter that which we said in Masciantonio Will, 392 Pa. 362, 367, supra: "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

[ 396 Pa. Page 20]

    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." Such rules of appellate review, however, do "not mean that he [the trial judge sitting as a chancellor] is a law unto himself and that the workings of his conscience cannot be reviewed. On the contrary, the authorities are clear to the effect that his discretion in such cases is, - as in all other cases - not unlimited, and that his decision should be reversed in this court, if, in our opinion, the decretion has been abused; [citing cases]"; STERN, J. (later Chief Justice) dissenting in May v. Fidelity Trust Company, 375 Pa. 135, 150, 99 A.2d 880. Were it otherwise appellate review would be futile and vain.

In all appeals from decrees of Orphans' Courts we are under the statutory duty to "hear, try and determine the same as to right and justice may belong, and decree according to the equity thereof": Orphans' Court Act of 1951, supra, § 773, 20 PS § 2080.773; Ciammaichella Appeal, 369 Pa. 278, 281, 85 A.2d 406; Nimlet's Estate, 299 Pa. 359, 368, 149 A. 658; McCullough's Estate (No. 2), 292 Pa. 422, 426, 141 A. 239; Shelley's Estate, 288 Pa. 11, 15, 135 A. 740; Drennan's Estate, 118 Pa. 176, 12 A. 348.

Even the most cursory examination of the opinion of the court below reveals the rendition by it of simply lip service to the mandate of this Court, a mere profession of obedience. It is not for this Court to act as a fact-finding tribunal nor to substitute its judgment for that of the trial judge who saw and heard the witnesses. It is, however, exclusively within our province to determine whether a subordinate court has complied with a considered mandate of this Court. We have not

[ 396 Pa. Page 21]

It is, therefore, our opinion that the issue of testamentary capacity should be tried by a jury.

Disposition

Decree reversed with the direction that a trial by jury be had to determine the testamentary capacity of Ermindo Masciantonio at the time of the execution of the will of July 20, 1955.

ING OPINION BY MR. JUSTICE BELL:

This is a will contest involving the question of whether the testator possessed or lacked testamentary capacity at the time he made his will on July 20, 1955, at approximately 4 p.m. The parties waived a jury trial and the Orphans' Court Judge sat as jury and Judge. At the first trial, the hearing Judge sustained the validity of the will. On appeal this Court reversed and directed "that the court below review the entire record in a manner consistent with [our] opinion with special reference to the relative weight to be accorded the testimony of the two physicians who attended the decedent in his last illness ...." (Masciantonio Will, 392 Pa. 362, 141 A.2d 362).

President Judge TAXIS, the hearing Judge, carefully and fully complied with the mandate of this Court and in an opinion of 25 printed pages analyzed the testimony of the important witnesses for and against the will, and sustained the will. With the possible exception of one sentence to which I will hereinafter refer, Judge TAXIS'S opinion was an exceptionally able one; and since the validity or invalidity of the will depended almost entirely on the credibility of Bernard DiGiacomo (the lawyer who drew the will and who was corroborated in ...


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