Appeal, No. 249, March T., 1960, from decree of Orphans' Court of Beaver County, No. 143 of 1959, in re estate of Anna Torhan, deceased. Decree affirmed.
Myron E. Rowley, with him Rowley, Smith & Rowley, for appellant.
John W. Cost, with him Eugene A. Caputo, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
This appeal involves the propriety of the action of the Orphans' Court of Beaver County in setting aside the probate of a will executed by mark.
Anna Torhan, a resident of Ambridge Borough, Beaver County, died April 4, 1959. Decedent had been married twice: by her first marriage to a man named Shevchik she had five children and by her second marriage to Charles Torhan she had four children. Charles Torhan, at the time of his marriage to decedent, was a widower with six children.*fn1
The alleged will was dated January 4, 1954 and purported to be the last testamentary disposition of both the decedent and Charles Torhan, her husband.
Charles Torhan, who predeceased decedent, did not execute the instrument and decedent's execution of the instrument was by mark. After decedent's death a caveat was filed against the probate of this instrument; after hearing, the Register of Wills of Beaver County admitted the instrument to probate as decedent's last will and testament. An appeal from this action of the register of wills was taken to the Orphans' Court of Beaver County upon the ground, inter alia, that the will was not executed in compliance with section 2(2) of the Wills Act of 1947, P.L. 89, 20 PS § 180.2, and Orphans' Court sustained the appeal and set aside the probate of the will. From that decree this appeal was taken.
The decree of the court below is affirmed on the following excerpts from Judge REED's opinion: "The applicable provision of Section 2 of the Wills Act of 1947 reads as follows: '(2) 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.'
"The latest reported case of our Supreme Court again interpreting this section of the act with reference to the execution of wills by mark is Rhodes Will, 399 Pa. 476, decided May 4, 1960, wherein it is held that to comply with the statutory provisions of Section 2 the proponent of the will must prove (479): '(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 ...