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JERVIS WILL (06/28/71)

decided: June 28, 1971.

JERVIS WILL


Appeal from decree of Court of Common Pleas, Orphans' Court Division, of Montgomery County, No. 70590 of 1969, in re estate of Alexander B. Jervis, deceased.

COUNSEL

Philip R. Detwiler, with him Butera and Detwiler, for appellant.

J. Brooke Aker, with him Smith, Aker, Grossman & Hollinger, for appellees.

Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Jones. Mr. Justice Roberts concurs in the result. Concurring Opinion by Mr. Justice Pomeroy.

Author: Jones

[ 443 Pa. Page 227]

When Alexander Jervis (decedent) died on June 25, 1969, he was survived by three children, Robert Jervis, Mary Duncan and Arthur Jervis (appellant). On October 8, 1968, while a guest at a rest home, decedent executed a will, the validity of which is now attacked.*fn1

[ 443 Pa. Page 228]

Under the terms of the challenged will, after reciting that he (the decedent) had made an inter vivos distribution of his "tangible personal property," decedent distributed his estate in the following manner: one-third (1/3) to Robert absolutely; one-third (1/3) to Mary Duncan absolutely; and the other one-third (1/3) to be divided into thirds with each third representing one-ninth (1/9) of the entire estate and, of this, one-ninth (1/9) was given to Arthur absolutely and the balance of two-ninths (2/9) was placed in trust -- in which trust Robert and Mary were, respectively, trustee and alternate trustee -- to pay the entire income therefrom to Arthur during his life and, upon Arthur's death, then the principal of the trust was to be divided into two equal shares to decedent's granddaughters, Margaret and Virginia Jervis (both Margaret and Virginia being daughters of Arthur by a marriage dissolved by divorce); in the event of the death of either grandchild prior to Arthur's death, then the survivor would take. Robert and Mary (proponents) were named executor and alternate executor respectively.*fn2

Prior to the probate of the challenged will, Arthur Jervis filed a caveat against the probate of the will alleging: (1) lack of testamentary capacity; and (2) that the will was procured by "undue influence, duress or constraint" practiced upon decedent either by Robert alone or by Robert and Mary "acting together in conspiratorial concert and confederation." Upon answer

[ 443 Pa. Page 229]

    filed, the matter was certified by the Register of Wills to the Orphans' Court Division of the Court of Common Pleas of Montgomery County. The parties joined in this certification. After hearing, that court entered the following decree: "And Now, August 3, 1970, the caveat of Arthur B. Jervis is dismissed, the proponents' motion for compulsory non-suit is granted and judgment entered for the proponents. The will of October 8, 1968 is herewith decreed to be valid and the Register of Wills is directed to probate the same forthwith." (Emphasis added.) From that decree the instant appeal was taken.

In view of the proponents' motion to quash this appeal as interlocutory,*fn3 we have decided, sua sponte, to consider the procedural posture of this appeal: whether the Orphans' Court Division of a Court of Common Pleas has the competence to enter a compulsory non-suit in a will contest. We begin with the proposition that compulsory ...


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