Appeal from decree of Orphans' Court of Erie County, No. 65 May List, 1964, in re estate of Rose Baum, deceased.
Francis J. Gafford, Deputy Attorney General, with him Eugene J. Brew, Jr., Counsel, and Walter E. Alessandroni, Attorney General, for Commonwealth, appellant.
William J. Kelly, with him Enoch C. Filer, Walter A. Dart, Jr. and Lyman C. Shreve, for appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Chief Justice Bell. Mr. Justice Cohen joins in this dissenting opinion.
This appeal involves the validity of charitable bequests contained in a will executed less than 30 days before death. Testatrix died on May 2, 1958, without heirs or next of kin, nine days after executing her last will dated April 23, 1958. In that will, as in her immediately preceding will of September 27, 1955, she bequeathed her residuary estate in equal shares to three designated charities. Both wills were drawn by the same attorney and contained charitable gifts of identical shares of the residue to the same named charitable beneficiaries for the same purpose.
Immediately upon the execution of her will of April 23, 1958, testatrix requested her attorney-scrivener to tear up the signed copy of her earlier 1955 will. This her attorney did, in her presence and in the presence of another person who had witnessed the new will. However, an identical carbon of her 1955 will which had been prepared simultaneously with the revoked signed copy was retained by the attorney.
The Commonwealth, asserting its right as statutory heir under Section 3(6) of the Intestate Act,*fn1 claimed the entire residuary estate for itself, contending that the gifts to the charities contained in testatrix's last will were of no effect because made within 30 days of testatrix's death.*fn2
The court below held that the undisputed record facts placed the case within the exceptions to the 30-day rule contained in Section 7(1) of the Wills Act,*fn3
and established the validity of the charitable gifts. From this determination the Commonwealth appeals.
Section 7(1) of the Wills Act of 1947 creates two methods by which charitable gifts contained in a will executed within thirty days of death may be validated.*fn4 One method permits such charitable gifts if all who would benefit by the invalidity of the charitable bequests agree that they shall be valid. The second method permits such gifts if (a) the probated will revokes a prior will executed at least thirty days before death, (b) "the original of which can be produced in legible condition", and (c) the prior instrument contains identical gifts for substantially the same charitable purposes. It is undisputed that conditions (a) and (c) have been fulfilled in this case. The crucial issue is whether the carbon sheets of the prior will qualify as an "original" under requirement (b) above or whether, as the Commonwealth contends, only the nowdestroyed,
executed ribbon copy of the prior will can be admitted to prove pre-existing charitable intent.
It is unquestioned that the carbon sheets of the prior will, which, in this case, were retained by testatrix's attorney and offered to prove the continuing charitable intention of testatrix, were made at the same time, by the same typewriter and by the same strokes as made the now-destroyed ribbon sheets of that will. In John Wanamaker v. Chase, 81 Pa. Superior Ct. 201, 203 (1923), the court said: "Where several copies of a writing are made at the same time by the same mechanical operation each is to be regarded as an original and is admissible as such [Citing cases and other authority.]." (Emphasis supplied.) Similarly, in Werner v. Hillman Coal & Coke Co., 300 Pa. 256, 264, 150 Atl. 471, 473-74 (1930), involving the question whether certain typewritten papers were copies or originals, the Court quoted with approval a statement in Harmon v. Territory, 15 Okla. 147, 164, 79 Pac. 765, 770 (1905). The quoted passage explained that the Oklahoma court did not believe that "a carbon copy of any longhand transcript of a stenographer's official notes, made by the stenographer ...