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BRANTLINGER WILL (05/25/65)

decided: May 25, 1965.

BRANTLINGER WILL


Appeal from decree of Orphans' Court of Indiana County, Sept. T., 1964, No. 72, in re estate of Nan Brantlinger, deceased.

COUNSEL

John S. Simpson, with him Fisher, Ruddock & Simpson, for appellant.

R. Carlyle Fee, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts.

Author: Roberts

[ 418 Pa. Page 238]

This controversy comes to us on appeal from a decree of the Orphans' Court of Indiana County directing the admission to probate of an instrument dated December 13, 1962, as the will of Nan Brantlinger, deceased.*fn1 Appellant is the granddaughter and sole heir at law of decedent, as well as a substantial beneficiary under the contested will.*fn2

When the will was executed, Mrs. Brantlinger was 81 years old and obviously showed her advanced age. Approximately a year and a half prior to signing her will, testatrix was hospitalized for treatment of a painful bursitis condition. Apparently Mrs. Brantlinger found her hospital confinement as distressing as her physical ailment and evidenced her displeasure by unco-operative and disruptive conduct.

In October of 1961, testatrix was taken from the hospital by her brother (proponent of the will) and

[ 418 Pa. Page 239]

    his wife*fn3 and placed in the home of Mrs. Morallo Berry, a practical nurse, who took care of Mrs. Brantlinger until her death in 1964.

In late Fall of 1962, Mrs. Berry contacted Joseph N. Mack, Esquire, an attorney of her acquaintance, and requested that he come to her home to prepare a will for Mrs. Brantlinger.*fn4 After ascertaining Mrs. Brantlinger's age and the reason for her confinement in Mrs. Berry's home, Mr. Mack agreed to come but suggested that decedent be examined by a doctor prior to his visit.

On December 13, 1962, a day after decedent had been examined by a doctor and found by him to be competent, Mr. Mack went to the Berry home.*fn5 Upon his arrival he was presented with some notes containing Mrs. Brantlinger's wishes for the disposition of her property.*fn6 Mr. Mack carefully went over these notes with Mrs. Brantlinger, ascertaining the nature of her property and the identity of her intended beneficiaries, and suggesting contingencies which he felt should be considered and provided for in the will.

After Mr. Mack concluded his conference with testatrix and prepared the will, the instrument was signed by Mrs. Brantlinger and attested to by Mr. Mack, Ruth O. Berry and Margaret I. Bowen, the latter two being residents in the Berry home.*fn7

[ 418 Pa. Page 240]

Although it was conceded that testatrix executed the will by affixing her signature to the instrument, Miss Berry and Miss Bowen refused to sign the affidavit of probate, stating that at the time Mrs. Brantlinger signed the will, she was senile, did not fully understand and was not, in their opinion, competent. For this reason, appellant maintains that the proponent of the will failed to "prove" the will by the statutorily required two witnesses.

The so-called "two witness rule" is manifested in Section 4(a) of the Wills Act*fn8 which provides: "General Rule. . . . no will shall be valid unless proved by the oaths or affirmations of two competent witnesses."

In addition, the Register of Wills Act*fn9 directs: "All wills shall be proved by the oaths or affirmations of two competent witnesses, and . . . in the case of a will to which the testator signed his name, proof by subscribing witnesses, if there are such, shall be preferred to the extent that they are readily available, and proof of the signature of the testator shall be preferred to proof of the signature of a subscribing witness."

Citing cases which deal with proof of the execution of the will,*fn10 appellant contends that a will is not proved unless the two ...


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