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GOLD WILL. (06/28/62)

June 28, 1962

GOLD WILL.


Appeal, No. 90, Jan. T., 1962, from decree of Orphans' Court of Delaware County, No. 448 of 1960, in re estate of Florence A. Gold, deceased. Decree affirmed.

COUNSEL

M. J. S. Stoney, with him George Guyer Young, for appellants.

Frank J. Bowden, Sr., with him Charles H. Heidman, for appellees.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.

Author: Jones

[ 408 Pa. Page 43]

OPINION BY MR. JUSTICE BENJAMIN R. JONES

This appeal challenges the validity of a decree of the Orphans' Court of Delaware County which refused in a will contest to grant an issue d.v.n. on testamentary capacity and undue influence.

Florence A. Gold (decedent), aged eighty-four years, died on January 14, 1960 in Media, Delaware County. Her only surviving relatives were Clifford A. Gold,*fn1 a brother, Howard W. Gold, Jr., a nephew, and Frances V. Ligambi, a niece, the latter being children of decedent's brother, Howard W. Gold, who predeceased decedent.*fn2

Decedent's last will, executed on November 5, 1959, after providing for her burial and payment of her debts, stated: "Third. I make no provision for my brother or the families of my brothers for the reason that in my opinion they unfairly estracted from me the sum of Twenty Thousand Dollars ($20,000) under threat of contesting in court the will of my brother Walter." The will then provided that decedent's residuary estate should be divided into "five equal parts",

[ 408 Pa. Page 44]

    that "three of said equal parts" should be given to her "friend and attorney" Cecil P. Harvey, Esq. and the remaining "two parts" to her "friend" Carrie Brown. In so providing, decedent stated: "I make these bequests of my residuary estate for the reason that they are my closest friends and have taken care of me in illness, in health, and who have for many years past responded to my needs whenever called upon." Attorney Harvey was named as the executor.

For an understanding of the third paragraph of this will certain factual background must be noted. In 1943 decedent, Eva Gold (an unmarried sister) and Walter Gold (an unmarried brother) lived together in Llanerch, Pa. Walter Gold had been engaged in business but, due to ill health, for a number of years he was unable to manage his business and the decedent, under a power of attorney, ran the business for him. Eva Gold kept house for Walter Gold and the decedent and Carrie Brown - one of the two residuary legatees - acted as a part-time domestic in the Gold household. Clifford Gold and Howard Gold, decedent's other brothers, were employees in Walter Gold's business. In August 1943 Attorney Harvey drew wills for Walter Gold, Eva Gold and decedent. When Eva Gold died she left her estate equally to Walter Gold and decedent. Thereafter, in June 1949, Walter Gold died leaving a gross estate of approximately $119,000, and, under his will, his estate was given to decedent as the sole surviving legatee, his will specifically excluding Clifford and Howard Gold from taking any portion of the estate. After confirmation of the account in that estate by the Orphans' Court of Delaware County, Clifford Gold and Howard Gold threatened to contest the will and that threatened contest was settled by the payment of $10,000 each to Clifford and Howard Gold by decedent. In letters enclosing these checks to the lawyers for Clifford and Howard Gold, Attorney Harvey

[ 408 Pa. Page 45]

    relayed decedent's instruction: "she does not want them to make any attempt to get in touch with her in the future or to have anything to do with her in the future". On that same day decedent executed a will which stated, inter alia: "I leave nothing to ... Howard W. Gold and Clifford A. Gold for the reason they deserve nothing and have today extracted from me money to which they are not entitled in settlement of a contemplated contest of the will of my dear brother, Walter C. Gold". Sometime thereafter Clifford Gold wrote several letters to the decedent which she returned unopened. It is clear beyond any question that decedent at the time of her death was not, and for many years had not been in good terms with either Howard or Clifford Gold and the latters' families were strangers to her.

On January 22, 1960, decedent's surviving brother, her nephew and niece filed a caveat against the probate of the will. Hearings were held before the Register of Wills of Delaware County at which voluminous testimony was presented and on April 19, 1960 the Register admitted the will to probate. From the probate of the will an appeal was taken to the Orphans' Court of Delaware county. Counsel then stipulated that the testimony and exhibits produced before the Register should constitute the record upon which the Orphans' Court should decide whether to grant an issue d.v.n. on the question of testamentary capacity and undue influence. On July 13, 1961, the Orphans' Court of Delaware County upheld the probate of the will and refused to grant an issue d.v.n. on testamentary capacity and undue influence. From that decree this appeal has been taken.

At the outset it must be noted that in the court below and in this Court appellants raised only two questions: the lack of testamentary capacity and the presence of ...


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