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PAUL WILL. (03/20/62)

March 20, 1962

PAUL WILL.


Appeals, Nos. 145 and 146, March T., 1961, from decree of Orphans' Court of Washington County, No. 259 of 1958, in re estate of Sophie D. Paul, deceased. Decree affirmed; reargument refused May 3, 1962.

COUNSEL

David B. Buerger, with him Alexander McIlvaine, Wray G. Zelt, Jr., Robert L. Frantz, and Buchanan, Ingersoll, Rodewald, Kyle & Buerger, for appellants.

Thomas L. Anderson, for appellee.

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

Author: Jones

[ 407 Pa. Page 32]

OPINION BY MR. JUSTICE BENJAMIN R. JONES

A narrow issue is presented: In refusing to grant an issue d.v.n. to determine whether undue influence had been exerted upon the testatrix of this will, did the court below abuse its discretion?

Sophie Paul (testatrix), an 83 year old resident of Washington County, died on January 31, 1955 survived by a first cousin (Earle Forrest), an aunt (Margaret Hayes), and two nephews*fn1 (J. William Paul and Samuel H. Paul), the latter being the present appellants.

Testatrix' last will, admittedly executed by her on September 30, 1954, was probated by the Register of Wills of Washington County on February 3, 1955. So far as presently pertinent, this will provided: (a) gifts of personalty and realty totaling $29,071.17 to seventeen

[ 407 Pa. Page 33]

    different friends, testatrix' aunt, certain charities and past and present employees; (b) a gift of realty, inventoried at $44,078.66, to Earle Forrest, a first cousin and the named executor; (3) a gift of 84 shares of the capital stock of Penn Manufacturing Corporation*fn2 (Penn) plus a filing cabinet and its contents to John McCreight (McCreight), testatrix' lawyer and the scrivener of her will; (4) a gift of the residue to the appellants. The will provided that "all transfer, inheritance, succession and estate taxes" were to be paid out of the residuary estate.

The estate was inventoried at $163,367.52.*fn3 After payment of debts, administration expenses, specific legacies, inheritance and estate tax (including taxes imposed by both state and federal governments on the Penn stock), appellants claim they will each receive as their share of the residuary estate less than $1900.*fn4

Administration of the estate was completed, an account filed and audited and distribution decree March 26, 1956. Almost 3 1/2 years after probate of the will and 2 1/3 years after the distribution decree, the residuary legatees appealed from the probate of the will.*fn5 These appeals were heard in the Orphans' Court of Washington County. After hearing, the hearing judge

[ 407 Pa. Page 34]

(the then President Judge ANDERSON) dismissed the appeals and refused an issue d.v.n. on the question of whether McCreight had exerted undue influence on testatrix which caused her to make the bequest to him in paragraph 15 of the will. Thereafter, the then President Judge MARINO dismissed the exceptions to the decree nisi and entered a final decree upholding the dismissal of the appeals. From that decree, appeals were taken to this Court.

The sole issue in the court below was whether McCreight had exerted undue influence upon the testatrix which caused her to provide in her will: "15. I give and bequeath to John B. McCreight 84 shares of the capital stock of The Penn Manufacturing Corporation and the filing case and contents in the second floor office."

Appellants contend that McCreight, occupying a confidential relationship to testatrix, by the exercise of fraud, misrepresentation and concealment, unduly influenced the testatrix to make this bequest of Penn stock to him. Specifically, it is charged that McCreight, Knowing that Penn stock was valuable stock, by fraud, led testatrix to believe that such stock was worth only $50 per share and that the bequest of such stock to him would amount to less than 3% of the total value of her estate and that, as McCreight intended, testatrix relied upon such misrepresentations and made the bequest to McCreight always laboring under the misapprehension that the total bequest amounted to less than 3% of her estate. Upon such basis, it is urged that paragraph 15 of the will is invalid and its probate should be set aside.

In our examination of this record we must be guided by certain principles well settled in this area of the law: (1) there is "a presumption of the absence of undue influence" (Quein Will, 361 Pa. 133, 145, 62 A.2d 909; Citizens National Bank v. McCafferty, 383 Pa. 588, 597,

[ 407 Pa. Page 35119]

A.2d 297; Erdeljac Will, 388 Pa. 327, 329, 131 A.2d 97); (2) where testatrix' testamentary capacity is established and there is no evidence of any infirmity, by reason of physical or mental affliction, it is the burden of those who charge undue influence to prove it, even though a large part of testatrix' estate is left to a person who occupied a confidential relationship to her (citizens National Bank v. McCafferty, supra, 597; May v. Fidelity Trust Co., 375 Pa. 135, 145, 99 A.2d 880; Snedeker Estate, 368 Pa. 607, 612, 84 A.2d 568; Quein Will, supra, 145; Ash Will, 351 Pa. 317, 322, 41 A.2d 620; Phillips' Estate, 244 Pa. 35, 44, 90 A. 457); (3) where it is charged that a person of sound mind and possessing testatementary capacity has been subjected to undue influence, the evidence to support such charge must be clear and convincing (Cressman Estate, 346 Pa. 400, 404, 31 A.2d 109; Royer's Estate, 339 Pa. 423, 424, 425, 12 A.2d 923; Fink's Estate, 310 Pa. 453, 456, 165 A. 832; Eble v. Fidelity Title & Trust Co., etc., 238 Pa. 585, 589, 86 A. 485) and mere suspicions, opinions or beliefs not founded on established facts are insufficient to support such charge ...


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