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PROTYNIAK WILL (11/14/67)

decided: November 14, 1967.

PROTYNIAK WILL


Appeal from decree of Orphans' Court of Erie County, Nov. T., 1965, No. 225, in re estate of Katherine Protyniak, deceased.

COUNSEL

Fred P. Anthony, for appellants.

Gabriel A. Bifulco and Jess S. Jiuliante, Jr., with them Chase, Bifulco, Mangan & George, and Jiuliante, Jiuliante & Kelleher, for appellees.

Bell, C. J., Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Musmanno took no part in the consideration or decision of this case.

Author: Bell

[ 427 Pa. Page 525]

This is an appeal from the Decree*fn* of the Orphans' Court of Erie County, Pa., sustaining the validity of

[ 427 Pa. Page 526]

    the last will of Katherine Protyniak. Mrs. Protyniak died on November 25, 1965, a resident of Erie County. In her short, clear will which was drawn by her attorney, Mrs. Protyniak devised and bequeathed one-half of her residuary estate to her daughter, Marie Reed, and the other half to two of her grandchildren, Joseph W. Rahal and Frederick E. Rahal, who were the children of her other daughter, Katherine Rahal. Katherine Rahal was appointed executrix. Mrs. Protyniak was survived by Marie Reed and by Mrs. Rahal, and by testatrix's two above-mentioned grandchildren, and also by three sons, William R. Atkins, Steve Protyniak and Theodore Protyniak, who are the contestants of the will and the present appellants.

Following an appeal from the Register of Wills who sustained the will, the hearing Judge granted the petition of the contestants and found the will to be invalid. The Judge based his decision on his conclusion that testatrix suffered an insane delusion which caused her to draw her will differently from the way she would have drawn it if the insane delusion had not existed. Exceptions were filed to the Judge's "Order and Opinion." On April 7, 1967, the same Judge, sitting alone as the Court en banc, (1) reversed his prior decision, and (2) found that contestants' evidence was not legally sufficient to prove that testatrix suffered an insane delusion at the time she executed her will, and (3) sustained the validity of the will.

Appellants rely upon six contentions: (1) the testatrix was suffering from an insane delusion when she made her will; (2) the testatrix lacked testamentary capacity at the time she executed her will; (3) the burden was on the proponents of the will to prove that testatrix had testamentary capacity; (4) the will was procured by undue influence; (5) a confidential relationship existed between testatrix and the proponents of the will, and therefore proponents had the burden

[ 427 Pa. Page 527]

    of proving that no undue influence was exercised; and (6) the trial Court erred in allowing hearsay evidence to be produced by the proponents of the will.

The record in this case totals 881 pages. Appellants' voluminous testimony may be summarized by stating that their mother was of low intelligence; she could not read or write and had difficulty in using the English language and her native Ukrainian language; she did not like business and had not attended to business for at least a couple of years before her husband's funeral, which was three days before her will was drawn; she was forgetful; she was sometimes hard to understand and on occasions made flighty statements; she had a weak heart and arteriosclerosis; at her husband's funeral (a) she appeared to be dazed and (b) did not seem to recognize some of their friends, and (c) said that she had given her husband breakfast the morning he died and that he was suddenly taken by death, when neither of these facts was accurate. Furthermore, her family doctor testified that in his opinion she lacked testamentary capacity. On the other hand, virtually all of these statements and ...


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