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ELIAS WILL (03/15/68)

decided: March 15, 1968.

ELIAS WILL


Appeal from decree of Orphans' Court of Philadelphia County, No. 2482 of 1965, in re estate of William John Elias, deceased.

COUNSEL

Joseph Matusow, with him Samuel J. Marks, for appellants.

David Weinstein, for appellees.

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

Author: Bell

[ 429 Pa. Page 315]

William John Elias, a man then in his early sixties, died on March 29, 1965, survived by two sisters, Anna and Mary, and two brothers, Samuel and Thomas. William Elias had been engaged in the business of buying and selling rugs and objects of art which had been started by his father. For many years and up to the

[ 429 Pa. Page 316]

    time of his death, Mary and Samuel participated with William in the conduct of this business. Mary, together with her daughter, lived with William in living quarters located over the business premises.

A writing dated March 9, 1965, purporting to be William's last will, was lodged with the Register of Wills for probate by Mary and Samuel on May 29, 1965. Mary and the scrivener, attorney Alvin M. Chanin, had signed the document as subscribing witnesses. With certain minor exceptions, this writing provided that William's entire estate was to be distributed in equal shares to Mary and Samuel. It then expressly stated in Item VIII: "I have made no provision herein for my brother, Thomas John Elias, 301 W. Park Lane, Clifton Heights, New Jersey and my sister, Mrs. George Anton Calza, a/k/a Anna Rebecca Elias Calza, Trieste, Italy and specifically direct that neither of these parties shall take under any provision herein contained nor as residuary legatees under this Will."

Prior to the completion of probate, a caveat was filed with the Register by Anna and Thomas. A hearing was held by the Register, who granted the prayer of the caveat and refused probate of the aforesaid March 9, 1965 writing. The basis of the Register's decision is not clear from the record. In any event, a de novo hearing was held in the Orphans' Court as a result of an appeal taken by Mary and Samuel from the Decree of the Register of Wills. The basic issue before the Orphans' Court was one of forgery. The Chancellor (1) ruled against contestants Anna and Thomas on the most important issue raised by them, namely, forgery, and (2) also concluded (a) that the decedent had testamentary capacity and (b) that the will had not been procured by undue influence. Accordingly, the appeal from the Register was sustained

[ 429 Pa. Page 317]

    and the writing of March 9, 1965 was held to be the will of the decedent William John Elias and entitled to probate. Exceptions were filed by Anna and Thomas, which were dismissed by the Court en banc, with one Judge dissenting. This appeal followed.

With respect to the scope of review in this type of case, we reiterated in Kadilak Will, 405 Pa. 238, 244, 174 A.2d 870, the applicable tests: "Upon appeal to this Court the chancellor's decision will not be reversed unless there appears to have been an abuse of discretion or a fundamental error in applying the correct principles of law: Molden Will, 387 Pa. 484, 500-501, 128 A.2d 568; Williams v. McCarroll, 374 Pa. 281, 298-299, 97 A.2d 14, and numerous ...


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