Appeals, Nos. 56, 57 and 58, Jan. T., 1959, from decree of Orphans' Court of Wayne County, No. 124 O.C.D. E-1, in the matter of estate of Grace M. Hall, deceased. Decree reversed.
I. Reines Skier, with him Robert T. Weinger, for appellants.
James Rutherford, with him J. Wilson Ames, A. Emerson Howell, John J. Koehler, and Louis B. Nielsen, for appellees.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and McBRIDE, JJ. Decree affirmed December 31, 1959. Reargument ordered February 2, 1960. Reargued May 3, 1960. Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. CHIEF JUSTICE JONES.
The question raised on these appeals is whether the court below erred in refusing to award an issue
Equinunk, Wayne County, where Mrs. Hall also resided, called L. B. Nielsen, an attorney at Honesdale, some 20 miles distant, and asked him to come to Gillow's home for the purpose of drafting a will for Mrs. Hall, who, up to that time, had been wholly unknown to attorney Nielsen. Mrs. Hall had been acquainted with Gillow for a long time. In fact, he had been a mail carrier at the post office of which she, at an earlier period, had been postmistress for about twenty years; also her late husband was a half-brother of Gillow's wife.
Pursuant to Gillow's request, Mr. Nielsen met Mrs. Hall at Gillow's home in April, 1955, and obtained from her a list of names of certain persons with addresses and amounts pertaining to suggested bequests to be made. Gillow was to be named executor of her will. Mr. Nielsen was unable, however, at that time to secure from Mrs. Hall the information which he deemed necessary for a bequest to Gillow and for the disposition of a certain farm which she owned. Nor did he then secure from her any information concerning the size of her estate or the disposition which she might wish to make of the residue. Mr. Nielsen departed without having drafted a will for Mrs. Hall's signature and did not see her again until two months later after she had become a patient (during what proved to be her last illness) at the Wayne County Memorial Hospital in Honesdale, to which she was admitted on June 4, 1955.
According to the testimony of Mrs. Hall's physician, Dr. Howard R. Patton, at the time she was admitted to the hospital she was "a critically ill patient," suffering from cerebral arteriosclerosis and manifesting increasingly baleful symptoms of senility. Shortly after her admission to the hospital, Mr. Nielsen told persons in contact with Mrs. Hall at the hospital of the uncompleted will and asked that he be notified
when, as and if, she improved sufficiently to see him. A couple of days later, Nielsen was twice informed that Mrs. Hall was improved but, on each occasion, when he arrived at the hospital shortly thereafter, he found her unable to converse with him intelligently. His candid testimony, as a witness for the proponents, goes far to confirm that, in truth, a very disputable issue, as to whether Mrs. Hall was mentally capable of making a will at any time while she was in the hospital, exists. Concerning his two above-mentioned visits to the hospital to see her, as a result of having been summoned, Mr. Nielsen testified, "[Dr. Patton] told me from his examination that morning, if I would come up, she would be able to talk these matters over with me, and I went up about two hours later and Mrs. Hall, I believe, was in the ward in an oxygen tent, and I brought a copy of this paper along with me, and I said, 'Mrs. Hall, do you remember me?' and she was in a very weakened condition and I couldn't tell whether she did recognize me or not. I talked to her for a few minutes and I could see her mind was rambling and she was not in any condition to discuss legal matters at all - it had been an hour or an hour and a half between the time I was called and the time I got up there - and I told the nurse if she thought the next day she was better, or the next time she felt she was better, to have me come up. So I went up the next day and I found her in the same condition and I left." Commendably enough, nothing was done by Mr. Nielsen, as a result of those visits, looking to the preparation of a will for Mrs. Hall.
The next time Mr. Nielsen saw Mrs. Hall was on June 17th when he went to the hospital as a result of having been contacted, "around the 15th" by Mr. Gillow and Mr. Pethick, the superintendent of the hospital, who was concerned that the nurses' bills had not been paid and that the hospital had not been paid.
When Mr. Nielsen had first been told about this, "around the 15th", he had said, "I don't see if she is not in better condition than when I saw her what can be done about it, but I will inquire what the situation is." He got in touch with a bank where Mrs. Hall had an account and "suggested that they send down a check... and if Mrs. Hall became lucid that the check could be presented to her and explained to her that these bills had to be paid, but that did not work out." Then it was that on June 17th he was called up from the hospital and told that Mrs. Hall was mentally alert and that they felt he could discuss the matter of the nurses and the hospital bills with her. Continuing, Mr. Nielsen testified, "When I talked to her, I felt she knew me, she recognized me, she remembered I was up at Equinunk that night and I told her there was a problem here about the nurses. I said, 'Miss Lorenz and the other nurses have not been paid and' that 'these girls must be paid as soon as possible,' and if she wanted me to that I could [prepare] a power of attorney, which would be limited to purely the matter of paying... her medical bills and hospital bills, and, after I explained that to her and she said that was what she wanted, I then went down to my office and prepared it and brought it up." Mrs. Hall signed it in the presence of two nurses, who witnessed it, and a local justice of the peace took her acknowledgment of it. Why Mr. Nielsen did not then also bring to Mrs. Hall's attention the matter of her uncompleted will does not affirmatively appear. But, there is ample evidence to support a strong inference why nothing whatever was said about a will at that time. On the very same day (June 17th), Mr. Nielsen, accompanied by Mr. Gillow, went to the home of an aged cousin of Mrs. Hall, living at Honesdale, where he informed the cousin that he had been trying unsuccessfully to complete a will for Mrs. Hall and stated that in her present condition she
was obviously incompetent to make a will. He asked the cousin to stand by for news of Mrs. Hall's death and, then, to come to his office for the purpose of having an administrator of Mrs. Hall's estate appointed.
On the morning of June 20th, in response to a call, Mr. Nielsen went to the hospital and talked to Mrs. Hall about her will. This, it will be noted, was the first time he had attempted to do so since her admission to the hospital on June 4th. As already pointed out, on two of his prior visits for the purpose of discussing a will with her, he had avowedly found Mrs. Hall incompetent to consider a will and, on his third visit, the subject of a will, significantly, had not even been mentioned. However, on June 20th, Mr. Nielsen, after talking to Mrs. Hall, returned to his office and there drafted a will which he caused to be typed and which he took, a little later, to the hospital and handed to Mrs. Hall's nurse, Miss Helen Lorenz. He asked Miss Lorenz to read the will to Mrs. Hall, which Miss Lorenz testified she did while Mr. Nielsen and Mr. Pethick, the hospital superintendent, awaited in the hallway outside of the door to Mrs. Hall's room. After the nurse had finished reading the will, Mrs. Hall signed it and Miss Lorenz and Mr. Pethick signed it as subscribing witnesses. This was between 11:30 and 11:40 a.m. on June 20th. After some specific bequests, the will left the residue of approximately $50,000, roundly 70% of the decedent's estate, in equal shares, to the Equinunk Methodist Church (of which Mrs. Hall was not a member and which she did not attend) and the Wayne County Memorial Hospital (an institution to which she had theretofore steadfastly refused to contribute).
After the will had been executed, Mr. Nielsen placed it in the safe in Mr. Pethick's office in the hospital. Shortly thereafter, Mr. Nielsen went back to the hospital, took the will from the safe and, without seeing
Mrs. Hall again or conferring with her in any way, carried the will back to his office where he caused a codicil to be typed on the back of it. He then returned to the hospital, about 1:15 p.m., and gave the will, bearing the added codicil, to Mr. Pethick for Mrs. Hall's execution of the codicil, instructing Mr. Pethick at the time to "explain to Mrs. Hall why she should sign the codicil." There is no evidence that anyone ever explained to Mrs. Hall why she should sign the codicil or made known to her its purposes and possible effect. Mrs. Hall signed the codicil at the request of her nurse, Miss Lorenz, who, with the supervising nurse, Mrs. Henrietta L. Young, signed as subscribing witnesses to the codicil. Miss Lorenz testified that she could not remember who brought the codicil to Mrs. Hall's room; nor could she remember what time this occurred, although, as she recalled, it was not long after the will had been signed. Mrs. Young, the other subscribing witness to the codicil, was on vacation at the time of the hearing in the court below and, consequently, was not called to testify.
The codicil provided that, in the event of Mrs. Hall's death within thirty days, the bequest to the Equinunk Methodist Church and the Wayne County Memorial Hospital should be paid "to Louis B. Nielsen, Jr., & W. D. Pethick, whom I believe will carry out my wishes." This dispositive provision of the codicil never became effective. Mrs. Hall died on July 28, 1955, more than thirty days after the will had been executed.
Testamentary capacity is to be determined by a testator's mental condition at the time current with the execution of the will: Skrtic Will, 379 Pa. 95, 100, 108 A.2d 750; Williams v. McCarroll, 374 Pa. 281, 293, 97 A.2d 14; Lewis Will, 364 Pa. 225, 231, 72 A.2d 80; Dichter Will, 354 Pa. 444, 448-449, 47 A.2d 691. What constitutes ...