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TREITINGER WILL (10/09/70)

decided: October 9, 1970.

TREITINGER WILL


Appeal from decree of Court of Common Pleas, Orphans' Court Division, of Allegheny County, No. 5528 of 1966, in re estate of Joseph Treitinger, otherwise known as Joseph Tritinger, deceased.

COUNSEL

Howard V. Heck, with him Fulton and Heck, for appellants.

Nick C. King, for appellees.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Eagen and Mr. Justice Roberts concur in the result.

Author: Bell

[ 440 Pa. Page 617]

In this case, the validity of the will of Joseph Treitinger, deceased, is being contested by five of his six children.

[ 440 Pa. Page 618]

Joseph Treitinger*fn1 died on December 19, 1966, leaving an alleged will dated October 28, 1966. Following his death, this will was duly probated by his youngest child, Charles Edward Treitinger, who was named executor. Testator gave all real property owned by him at his death and all his household goods and furnishings to his daughter-in-law, Imelda Marie Treitinger, the wife of his youngest child Charles, who (with their children) lived with testator at his home. His real estate was inventoried at $20,000, although one of his sons testified that it was worth approximately $100,000. Testator then bequeathed the rest of his estate to his six children in equal shares, and directed that his death taxes be paid out of his residuary estate. His personal estate was inventoried at $18,770. An appeal from probate was filed by five of his children, alleging that (1) at the time of the execution of the will their father lacked testamentary capacity, and (2) the will was invalid because not properly executed, and (3) the will had been procured by Imelda's undue influence. Upon contestants' petition, the Orphans' Court Judge impaneled a jury to hear the case. The jury, after hearing the evidence, found (1) that the testator was of sound mind and possessed testamentary capacity, and (2) that the signature was in fact that of the testator, but (3) that the writing (the probated will) was procured by undue influence by Imelda. The Court agreed with the first two findings, but disagreed with the third. In spite of the jury's finding of undue influence by Imelda, the Orphans' Court Judge -- as is his power, since a jury's verdict is advisory only, see Duross Will, 395 Pa. 492, 150 A.2d 710, infra -- granted proponents' (appellees') motion for judgment non obstante veredicto and entered a Decree dismissing the appeal from

[ 440 Pa. Page 619]

    probate. After contestants' exceptions were dismissed, this appeal was taken.

We shall briefly analyze and summarize the 455 pages of the record.

Joseph Treitinger, at the time he executed his will, was a nearly blind widower, 86 years of age. Charles and his wife, Imelda, came to live with his father and mother shortly after they were married in 1950. Testator's other children had left their parental home. A few years after Charles and Imelda moved into his parents' home, testator's wife was unable to perform the household duties and Imelda assumed the responsibility of caring for the family and took over all the household duties. Testator's wife died in 1956 and thereafter Imelda continued to attend to all the household duties and soon thereafter commenced to look after the testator when his blindness increased and restricted his ability to care for himself. She did all the cooking for the testator, and her husband and their children, and took care of the house. As the testator got older, he became more dependent upon Imelda and her care, and later authorized Imelda to sign checks on his bank account in order to pay the expenses of maintaining his home. On November 1, 1966, testator was admitted to the hospital on his doctor's orders, where he subsequently died on December 19, 1966.

Some time during October of 1966, Charles contacted an attorney, Norbert A. Michalski, and asked him to visit his father to discuss the preparation of his will. Michalski, who had never previously represented the testator, called upon him at his home and, in the presence of Charles and Imelda, obtained from Joseph Treitinger his wishes for his will. On October 28, 1966, Attorney Michalski, accompanied by his brother ...


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