Appeal, No. 23, Jan. T., 1960, from decree of Orphans' Court of Montgomery County, No. 59,385, in re purported last will and testament of Lillian E. Taubel, deceased. Decree affirmed. Proceedings on certificate from register of wills to determine whether writing should be probated. Before TAXIS, P.J. Adjudication filed directing register of wills to refuse probate of document and final decree entered. Proponent appealed.
Donald W. Hedges, with him Desmond J. McTighe, Thomas F. Wilson, and Mancill, Cooney, Semans & Hedges, for appellant.
J. Brooke Aker, with him Harold J. Budd, M. Paul Smith, and Budd & Bertas, and Smith, Cahall & Aker, for appellees.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.
OPINION BY MR. JUSTICE MCBRIDE
The decedent, Lillian E. Taubel, died November 1, 1958, a resident of Montgomery County, Pennsylvania. Following her death various testamentary documents, written at different dates, were lodged, by request, with the Register of Wills of Montgomery County. Only the writing bearing the latest date, March 26, 1953, was offered for probate. There was also lodged with the Register a second document which is a revocatory writing in the margin of a copy of this March 26, 1953 instrument. The Register certified the matter to the Orphans' Court under Section 207 of the Register of Wills Act of 1951.*fn1
The court below, after a full hearing, held that the will of March 26, 1953, which was offered for probate, was effectively revoked and directed the Register to refuse probate. This appeal followed.*fn2
At the hearing the documentary evidence included a writing offered by John Tait, the Executor named therein,*fn3 which is the original will in question dated March 26, 1953 signed by decedent and properly witnessed.
There is no contest relating to the execution of this instrument or that it has been duly proved for probate by two competent witnesses to decedent's signature. Also introduced into evidence was a carbon copy of an independently made typewritten copy of the will of March 26, 1953. This, however, is not a carbon copy created simultaneously with such will. It is unsigned and not conformed and was prepared on a different typewriter; but is the same in content as the signed original, with one irrelevant exception.*fn4 Along the left margin of the first page of this document the following notation, admittedly in the handwriting of decedent and signed by her at the end, is found:
"The original of this will (4 pages) was destroyed by me of my own free will - in the kitchen of my home at 334 Winding Way - Merion - Pa. in the presents (sic) of Colbert McClain, Atty., Robert Lawson, and Arnay Deegan - in the Fall of 1954,*fn5 therefore this will is null and void; copy is being kept by me for my information only /s/Lillian E. Taubel, 9/16/55." This copy also contained various miscellaneous notations in the handwriting of decedent, including the words "signed Thurs. nite 3/26/53." The sole issue is whether this marginal writing constitutes an effective revocation of the signed original within the meaning of § 5(2) of the Wills Act of 1947, P.L. 89, § 5(2), 20 P.S. § 180.5(2). The Act provides: "No will or codicil in writing, or any part thereof, can be revoked or ...