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LEONARD ESTATE (11/14/67)

SUPREME COURT OF PENNSYLVANIA


decided: November 14, 1967.

LEONARD ESTATE

Appeal from decree of Orphans' Court of Westmoreland County, No. 1747 of 1963, in re estate of A. L. Leonard, alias dictus Alexander L. Leonard, deceased.

COUNSEL

Charles E. Marker, with him Clarence F. McBride, and Scales and Shaw, for appellants.

George R. Craig, with him Charles T. Bonos, Jr., George Wilson McKeag, John M. Noel, Avra N. Pershing, Jr., Howard M. Whitehead and Carl M. Seiler, for appellees.

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

Author: Jones

[ 427 Pa. Page 364]

This is an appeal from the decree of the Orphans' Court of Westmoreland County.

A. L. Leonard, alias dictus Alexander L. Leonard, died on December 28, 1963, a resident of Westmoreland County, Pa. His last will and testament, dated December 16, 1963, was admitted to probate by the Register of Wills of Westmoreland County on January 2, 1964. This last will and testament of decedent contained various charitable devises and bequests including a residuary clause whereby the residuary estate was given to Peoples Union Bank and Trust Company in trust to distribute the income to various charitable institutions.

The testator died within thirty days of the execution of his last will and testament. A hearing was held before the Register of Wills in order to determine the validity of these charitable gifts.*fn1 The evidence

[ 427 Pa. Page 365]

    disclosed that the decedent had executed three wills and a codicil during his lifetime.*fn2

The first will was dated May 22, 1958. This will was delivered to Carl M. Seiber, Esquire, when the decedent visited Mr. Seiber's office on October 28, 1963, for the purpose of preparing a new will. This will then remained in the custody of Mr. Seiber. There were some notations made on the will by the decedent and others made by Mr. Seiber, all for the purpose of assisting in the preparation of a new will for the decedent. This new will was executed on November 8, 1963. Neither the original nor a copy of this November 8, 1963 will was in existence when the testator died. On December 3, 1963, the testator duly executed a codicil to the will dated November 8, 1963.

A third will, dated December 16, 1963, was admitted to probate as the testator's last will.

All three of these wills contained substantially similar charitable bequests.

The sole question to be determined is whether the appellants should be permitted to establish, by oral testimony alone, an alleged revocation clause in the alleged November 8, 1963 will, which clause revoked

[ 427 Pa. Page 366]

    the May 22, 1958 will. Section 5 of the Wills Act of 1947*fn3 provides the manner in which a will may be revoked. The appellants are seeking to show that ยง 7(1) of the Wills Act of 1947*fn4 does not save the charitable gifts because the alleged will of November 8, 1963 revoked or superseded the will of May 22, 1958.

The original of the will dated May 22, 1958, is in existence and was admitted to probate. The charitable

[ 427 Pa. Page 367]

    gifts made in this will are substantially similar to the charitable gifts made in the will dated December 16, 1963, which was admitted to probate as the last will of the decedent. The codicil dated December 3, 1963, is not inconsistent with and does not revoke the will of May 22, 1958.

Oral testimony alone that the will of May 22, 1958, was revoked by an alleged will dated November 8, 1963 is not sufficient to prove revocation and such evidence is not admissible: Shetter's Estate, 303 Pa. 193, 197, 154 A. 288 (1931); Koehler's Estate, 316 Pa. 321, 323, 175 A. 424 (1934).

Since our law will not permit the appellants to prove the revocation of the May 22, 1958 will by oral testimony alone, we need not consider the merits of the other contentions raised. Section 7(1) of the Wills Act of 1947 saves the charitable bequests contained in the last will of the decedent to the extent they do not exceed the bequests in the 1958 will, notwithstanding the death of the testator within thirty days of the date of its execution.

The decree of the court below is affirmed.

Each party pay own costs.

Disposition

Decree affirmed.


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