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ABRAMS WILL (09/29/65)

decided: September 29, 1965.

ABRAMS WILL


Appeal from decree of Orphans' Court of Bucks County, No. 34481, in re estate of David J. Abrams, deceased.

COUNSEL

Mary Alice Duffy, for appellants.

Walter W. Jackson, with him Jackson & Hinchey, for appellee.

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

Author: Jones

[ 419 Pa. Page 94]

On April 14, 1959, David J. Abrams (decedent), then aged 61 and a resident of Bucks County, died. Surviving him were two legitimate daughters,*fn1 Bertha A. Moebius and Barbara A. Ballard, who are the present appellants; a woman named Minnie Bigger (Abrams) who claimed to be decedent's lawful wife at the time of his death;*fn2 two children, named David J. Abrams, Jr. and Eleanor Abrams Nolte, born to Minnie Bigger (Abrams) at a time when she was still married to John Bigger but living with decedent.*fn3

On April 30, 1959, the Register of Wills of Bucks County admitted to probate as the last will of decedent a writing dated September 26, 1957. This writing -- prepared by decedent's lawyer -- provided: (a) for the

[ 419 Pa. Page 95]

    erection of a suitable cemetery headstone for decedent and Edna M. Abrams; (b) a devise and bequest of the entire residuary estate to Girard College;*fn4 (c) the appointment of the lawyer-scrivener of the writing as executor.

On September 18, 1959, decedent's two legitimate daughters -- unmentioned in the will -- appealed from the probate of the will to the Orphans' Court of Bucks County and requested a jury trial of the issue. The grounds of the appeal were that at the time the will was executed (1) decedent was (a) intoxicated and (b) lacked testamentary capacity and (2) that decedent was subjected to undue influence.

After hearings at which voluminous testimony was taken,*fn5 the chancellor dismissed the appeal and sustained the probate of the will. From that decree this appeal was taken.

Two questions are presented: (1) whether the chancellor abused his discretion in refusing to grant an issue d.v.n. and award a trial by jury? (2) whether the chancellor erred in refusing to set aside the will, in rulings as to burden of proof and presumptions, in disregarding uncontradicted evidence and in his findings of fact and conclusions of law?

Appellants argue that in a will contest which (a) involves decedent's realty and (b) presents a substantial dispute of fact*fn6 as to the validity of the will, there

[ 419 Pa. Page 96]

    is a constitutional right to a trial by jury. For the purpose of this argument we will assume the existence of a substantial dispute of fact and we recognize that the instant decedent's estate consists principally of realty; under such circumstances were appellants entitled to a trial by jury?

Section 1 of the Act of July 14, 1961, P. L. 610, 20 P.S. § 2080.745, -- the provisions of which were in effect when the hearings in the case at bar were held -- provides, inter alia: "(c) Will Contest and Other Matters. When a contest shall arise concerning the validity of a writing alleged to be testamentary . . ., the court, in its discretion at any stage of the proceedings, may impanel a jury to decide any question of fact but the verdict of the jury shall be advisory only."*fn7

In Hunter Will, 416 Pa. 127, 136-138, 205 A.2d 97, we have recently construed this statutory provision: "Further, appellant challenges the court's conclusion that there was no necessity for a trial by jury. Appellant's argument assumes the right to a trial by jury, an assumption which is erroneous. This case came before the court subsequent to the effective date of the Act of July 14, 1961, P. L. 610, § 1, 20 P.S. § 2080.745, and is governed by its mandate. Prior to that Act, we held that the existence of a substantial dispute of fact in a will contest entitled the parties to a trial by jury under the then applicable statute. Murray Will, 404 ...


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