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RHODES WILL. (05/04/60)

May 4, 1960

RHODES WILL.


Appeals, Nos. 17 and 18, March T., 1960, from decree of Orphans' Court of Westmoreland County, Feb. T., 1959, No. 98, in re estate of Cloyd M. Rhodes. Decree reversed.

COUNSEL

David McNitt Barron, with him Harold W. Houck, and Houck & Barron, for appellants.

Harry L. Allshouse, with him Vance E. Booher, for appellee.

Before Jones, C.j., Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Jones

[ 399 Pa. Page 478]

OPINION BY MR. JUSTICE BENJAMIN R. JONES.

Decedent, aged 83 years and a resident of Westmoreland County, died on January 12, 1959 survived by a brother, Benjamin H. Rhodes, and a sister, Nora R. Kiner, the present appellants.

The validity of decedent's will - allegedly executed on January 2, 1959 while decedent was in a hospital - is attacked in this proceeding. In this will decedent made four pecuniary bequests of $10,000 each, respectively, to his brother, Benjamin H. Rhodes, to his sister, Nora R. Kiner, to a friend, Vance E. Booher, Jr., and the Presbyterian Church of McVeytown, Pa.; all the residue of his estate he gave in trust to the Presbyterian Church of McVeytown, Pa.*fn1

Prior to the presentation for probate of this will appellants filed caveats with the Register of Wills of Westmoreland County. Apparently by certification of the Register,*fn2 the Orphans' Court of Westmoreland County heard this matter.*fn3 After hearing, that court dismissed the caveats and directed the Register to probate

[ 399 Pa. Page 479]

    the will. The present appeals were taken from that decree.

The validity of the will is attacked on four grounds: (1) that the will was not properly executed under Section 2(2) of the Wills Act of 1947;*fn4 (2) that the will was not properly proved under Section 4 of the Wills Act of 1947,*fn5 supra; (3) that the will was procured by undue influence; (4) that decedent lacked testamentary capacity.

Initially, we must determine whether this will, to which the decedent affixed his mark, was executed in compliance with Section 2(2) of the Wills Act of 1947, supra, which provides: "Signature by mark. If the testator is unable to sign his name for any reason, a will to which he makes his mark and to which his name is subscribed in his presence before or after he makes his mark, shall be as valid as though he had signed his name thereto: Provided, He makes his mark in the presence of two witnesses who sign their names to the will in his presence." To comply with this statutory provision a proponent of this type of will must prove: (1) the inability of the testator to sign his name for any reason; (2) that the mark was made by the testator; (3) that, either before or after the testator made his mark, his name was subscribed; (4) that the subscription of testator's name took place in his presence; (5) that when testator made his mark two witnesses were present; (6) that these witnesses signed their names to the will; (7) that the subscription of the witnesses' names took place in the testator's presence. Section 2(2) sets forth what must be proven to validate a will executed by mark.

On the other hand, Section 4 of the Wills Act of 1947, supra, sets forth how the requisite facts under

[ 399 Pa. Page 480]

Section 2(2) must be proven. Section 4 provides: "(a) General rule...., no will shall be valid unless proved by the oaths or affirmations of two competent witnesses". (Emphasis supplied). This section sets forth in statutory form the well-established and salutary rule in the law of wills known as the "two witness rule": Asay v. Hoover, 5 Pa. 21, 33; Grabill v. Barr, 5 Pa. 441, 445; Kelly's Estate, 306 Pa. 551, 160 A. 454; James' Estate, 329 Pa. 273, 198 A. 4; Orlady's Estate, 336 Pa. 369, 9 A.2d 539; Morris Will, 349 Pa. 387, 37 A.2d 506; Cohen Will, 356 Pa. 161, 51 A.2d 704; Walkiewicz Will, 392 Pa. 310, 140 A.2d 589. Chief Justice GIBSON in Hock v. Hock, 6 S. & R. 47 succinctly stated this rule: "Proof of execution must be made by two witnesses, each of whom must separately depose to all the facts necessary to complete the chain of evidence, so that no link in it may depend on the credibility of but one". More recently the rule was concisely stated by Mr. Justice (later Chief Justice) STERN in James' Estate, supra (p. 275): "There must be a strict compliance with these statutory provisions, and a will is not valid unless executed precisely in accordance therewith. If executed by mark, it is not a lawful instrument unless testator's name was subscribed in his presence and by his direction and authority: Hunter's Estate, 328 Pa. 484.... But,..., the facts that such direction was given and that testator's name was subscribed in his presence must be proved, under the act, by two or more competent witnesses, each of whose testimony must be complete, independently of the other's, as to the existence of those circumstances and the performance of those acts which the statute requires to exist and to be done as conditions essential to the validity of the will". As a safeguard against possible fraud in the execution of wills the "two witness rule" needs no defense at this late date.

[ 399 Pa. Page 481]

While the validity of a will requires proof from two witnesses, such witnesses may be nonsubscribing as well as subscribing provided their competence be established: Carson's Appeal, 59 Pa. 493; Novicki v. O'Mara, 280 Pa. 411, 124 A. 672; Morris Will, supra; Cohen Will, supra; Walkiewicz Will, supra.

When this will was executed, three persons - Vance E. Booher, Sr. (the scrivener), H. E. Holloway and Margaret B. King - were present. All three persons testified that decedent made his mark, that the mark was made in their presence, that Mrs. King and Mr. Holloway signed their names as subscribing witnesses and that such subscription took place in decedent's presence. It is undisputed that decedent's physical condition was such that he was unable to sign his name. However, neither of the subscribing witnesses could testify to the circumstances surrounding the subscription of the decedent's name, who made it, when it was made or whether it was made in the decedent's presence. Mrs. King stated that she did not know who wrote the name Cloyd M. Rhodes on the will or the words "his mark" above and below the place where the mark appears. Mr. Holloway stated that he could not recall whether Cloyd ...


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