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January 17, 1962


Appeal, No. 364, Jan. T., 1961, from decree of Orphans' Court of Philadelphia County, No. 3243 of 1959, in re estate of Margaret Sommerville, deceased. Decree reversed; reargument refused February 12, 1962.


Barbara Ann Duffy, with her G. Hayward Reid, for appellant.

Charles M. Solomon, with him Franklin A. Wurman, Bernard L. Frankel, and Fox, Rothschild, O'Brien & Frankel, for appellee.

Before Bell, C.j., Jones, Cohen, Eagen and Alpern, JJ.

Author: Bell

[ 406 Pa. Page 208]


The question involved may be simply stated. Does a mother's hatred for her illegitimately born daughter for no disclosed reason amount in law to an insane delusion and justify the voiding of her will?

Margaret Sommerville, the testatrix, died August 28, 1958. She executed her will on October 22, 1945. It was prepared by a reputable attorney, Henry J. Rebman, and he and Mary J. Tait were subscribing witnesses. Unfortunately, both predeceased testatrix. Testatrix bequeathed and devised to her long-time friend, Martha Elizabeth Guy, her residuary estate which amounted to approximately $50,000, but left her daughter a legacy of only $2,000 and her daughter's son only $1,000.

The Orphans' Court entered a decree directing the following questions of fact to be tried by a jury:

"(1) Whether or not at the time of execution of said writing the Decedent was a person of sound and disposing mind;

"(2) Whether or not the said writing was procured by undue influence, duress or fraud practiced upon the said Decedent by Martha Elizabeth Guy, and others."

[ 406 Pa. Page 209]

The jury answered the first question No. The jury did not answer the second question probably because there was not a scintilla of evidence that Mrs. Sommerville's will was procured by undue influence or duress or fraud practiced upon her by the legatee, Martha Elizabeth Guy, or by anyone. The Orphans' Court, with Judge BOLGER dissenting, entered a decree which affirmed the finding of the jury and set aside the probate of Mrs. Sommerville's will, - not on the ground of general testamentary incapacity but on the ground of an insane delusion against her daughter. Martha Elizabeth Guy took this appeal.

The Evidence

We shall briefly summarize the voluminous testimony.

Margaret Sommerville was born circa 1866. She came as a young girl to this Country from Scotland. In 1890 she gave birth, out of wedlock, to the contestant, but two years later married the father of the child, now called Margaret Russell. Sommerville left his wife a few months after their marriage and never contributed any support to his wife or child. Contestant never saw her father.

Contestant was placed in the Philadelphia Orphans Asylum at an unknown time, but before she was six years of age. She remained in the Orphanage until she was over 17, at which time she was bound out to a family as a child's nurse for fifty cents a week until she reached the age of 18, when she received a lump sum payment of $50. Testatrix's only employment during her entire life was as a live-in laundress, and it was conceded that she was an illiterate person with very little if any schooling. No reason is disclosed why contestant was placed in the Orphan Asylum, but it is obvious it must have been because her mother didn't have a home or the money to support her.

[ 406 Pa. Page 210]

From the time contestant was placed in the Orphanage until 1908, when she was nearly 18 years old, she saw her mother about 8 times. A few weeks before she was 18, her mother asked her to pack her clothes and come home and live with her; she refused, and never told her mother the reason for her refusal. However, she testified that it was because "the people of the home ... decided then, as my mother did not have a home to care for me, that I would continue on the job until they could verify that my mother had a home for me." It is clear that her mother was very upset and rankled by this refusal.

Contestant didn't see her mother again until 1922*fn1 and during that long interval from 1908 until 1922, her mother made no attempt to see her, although contestant testified that she wrote her mother several letters, all of which came back.

Her mother came to see her in 1922.*fn2 From 1922 to 1928 contestant visited her mother 6 or 7 times and they corresponded irregularly with each other. During this period and after contestant had refused to go and live with her mother, her mother did not wish to see contestant and wrote how much the contestant upset her and how much she despised and hated her. Nevertheless, contestant succeeded in borrowing money from her mother, the amount and date of which are unknown. Moreover, contestant in some way obtained possession of the deed to her mother's cemetery lot and despite several requests from her mother, refused to return

[ 406 Pa. Page 211]

    it. There is no doubt of the fact that testatrix did not get along with her daughter and despised and hated her. None of this is a figment of the imagination, all of the foregoing are admitted or clearly established facts.

Testatrix, although only a laundress, saved enough money to purchase 9 properties prior to 1928. In 1928 she took these properties out of the hands of her real estate agent because she did not think she was getting a sufficient return. Thereupon, contestant filed a petition in the Court of Common Pleas to have her mother declared incompetent. A hearing was fixed for December 1, 1928, but no hearing was held. At that time contestant had obtained an eminent psychiatrist, Dr. Leopold, to testify in support of the petition that her mother was incompetent and was likely to become the victim of designing persons and was incapable of managing her estate. Contestant testified that when the Judge came out of his chambers after a conference with the attorneys he said that her mother's property should be taken care of by the Land Title Trust and Mortgage Company, and the case was withdrawn. The property was never taken out of her mother's hands or placed with the Land Title. Testatrix wrote a letter to Dr. and Mrs. Tait (Dr. Tait was her cousin), explaining why she changed her mind about appointing the Land Title as her real estate agent. In this letter she said, inter alia, that if she had been left alone by her daughter she would soon have had saved an additional $1,000 to buy a new home in a better part of the City, and that her daughter had tried to have her "made simple-minded" when in less than 5 years she had paid off mortgages on her properties totaling $6,800, and during this time had also spent over $3,000 in repairs, and "My daughter knew what wages I got and was always after the money, and now they try to tell me I can't have brains enough to look after my own properties." Except for

[ 406 Pa. Page 212]

    the contestant's motives - as to which testatrix may or may not have been mistaken - these are not figments of imagination, these are actual facts!

It is indisputable that contestant gave her mother no affection or love or comfort or care; that she refused to come and live with her; that she rarely ever saw her; that she tried to have her declared incompetent; that they never got along well together; and that her mother despised and hated her - for no disclosed reason, although it is clear that there were ample reasons to justify in her mind her feelings toward her daughter. Under these circumstances why should the law compel her to leave her estate to her daughter instead of to a woman who had befriended her for years?

Dr. Leopold testified at the trial of this case in 1960 - based upon the notes he had made in 1928 - that testatrix was incompetent in 1928 and unable to manage her own affairs and that at that time "she was not delusional - I couldn't call her delusional when I saw her ... a fixed idea against her daughter which could become a chronic delusional process .... She had a delusional trend, not very strong, but present .... This delusional trend [was] very pronounced and chronic." Just what that contradictory testimony meant was clear to the lower Court but not to us - certainly it was insufficient to prove, contrary to the lower Court's conclusion, an insane delusion as that term is known to the law. It is both interesting and important to note in connection with the weight to be given to Dr. Leopold's testimony - upon which the lower Court so strongly relied - (a) the remoteness of the time between 1928 and 1945 when testatrix executed her will, and (b) that ...

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