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COHEN WILL (12/20/71)

SUPREME COURT OF PENNSYLVANIA


decided: December 20, 1971.

COHEN WILL

Appeal from decree of Court of Common Pleas, Orphans' Court Division, of Montgomery County, Dec. T., 1970, No. 71323, in re estate of Abraham Cohen, deceased; appeal of Richard William Cohen.

COUNSEL

Paul Maloney, with him Pepper, Hamilton & Scheetz, for appellant.

Ronald Ervais, with him Steven J. Hartz, and Becker, Fryman & Ervais, for appellee.

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

Author: Roberts

[ 445 Pa. Page 550]

This appeal arises out of a contest over a will which was executed by Abraham Cohen, M.D., on December 31, 1968, while he was a patient in the Abington Memorial Hospital. This will was duly admitted to probate, and Letters Testamentary were granted thereon. On December 10, 1970, the Orphans' Court Division of the Court of Common Pleas of Montgomery County, after hearing, dismissed the appeal of Dr. Richard W. Cohen, the testator's only child, from the Register's decree. This appeal followed.

Appellant contends that his father's will should be denied probate. He alleges that the testator did not have testamentary capacity at the time he signed the will. In addition, he alleges that the testator did not intend to make the disposition of his estate which the will of December 31, 1968, would effect. After a careful review of the record, we reject both of appellant's contentions and affirm the decree of the orphans' court.

Preliminarily we should note that in reviewing the decision of the orphans' court, our task is to assure that the record is free from legal error and to determine if the chancellor's findings are supported by competent and adequate evidence, and are not predicated upon capricious disbelief of competent and credible evidence. See, e.g., Holtz Will, 422 Pa. 540, 544, 222 A.2d 885, 888 (1966); Hunter Will, 416 Pa. 127, 136, 205 A.2d 97, 103 (1964).

[ 445 Pa. Page 551]

The record establishes that on June 11, 1968, testator, a physician, prepared for himself a will which in essence divided his estate equally between his wife and his son. On the evening of December 29, 1968, testator had his wife drive him to the Abington Memorial Hospital. There testator, a member of Abington Memorial's staff, was placed in the hospital's coronary care unit.

On the evening of December 31, 1968, I. Jerome Stern, Esq., brought to the hospital a new will which he had prepared at testator's request. This will contained a bequest to testator's wife in the amount of the maximum marital deduction, and created a residuary trust whose income was to be distributed to testator's wife. The will was signed that evening. Testator was released from the hospital on January 29, 1969, and died less than three months later on April 18, 1969.

Appellant urges that testator lacked testamentary capacity*fn1 at the time he executed the December 31, 1968, instrument. We have long held that once the execution of a will is proved by the required two witnesses, as it was here, a "presumption of testamentary capacity" arises which can only be overcome by "clear, strong, and compelling evidence." Brantlinger Will, 418 Pa. 236, 242, 210 A.2d 246, 250 (1965). We agree with the orphans' court that appellant has failed to sustain his burden of proving that testator lacked testamentary capacity.

Appellant produced two witnesses on the issue of testamentary capacity.*fn2 Dr. Roderick Kitchell, testator's

[ 445 Pa. Page 552]

    attending cardiologist, admitted that at the time of testator's hospitalization he was "not particularly interested" in testator's mental condition. When asked for his opinion of testator's competency on December 31, 1968, the most that Dr. Kitchell could state was: "I would say that his judgment was not of the best."

Appellant's other witness, Dr. Bernard L. Segal, had never examined or even seen testator. Nevertheless, Dr. Segal testified that on the basis of the hospital records it was his opinion that testator "could not have possessed full testamentary capacity". However, Dr. Segal's testimony was subsequently rebutted by Dr. Theodore Rodman, a cardiologist who testified from the hospital records on behalf of the proponents of the will.

Proponents, on the other hand, presented a great deal of convincing evidence of testator's capacity. Betty J. Kerling, a nurse at Abington Memorial Hospital and one of the subscribing witnesses to the contested will, testified that testator knew that he was signing a will that had been prepared previously. The testimony of Attorney Stern indicated that testator was alert and fully aware of what he was doing when he signed the challenged will. Testator's widow testified that on December 31, 1968, her husband's memory and judgment were unimpaired. Furthermore, proponents produced check stubs which indicated that testator, on December 31, 1968, wrote several checks in payment of his home mortgage and office rentals. Such evidence is particularly relevant in view of our oft-repeated holding that "testamentary capacity need not rise to the level required to conduct business affairs." Brantlinger Will, supra, at 248, 210 A.2d at 253.

[ 445 Pa. Page 553]

Appellant's second contention is that testator did not intend to adopt the testamentary scheme set forth in the will of December 31, 1968. Appellant is correct in his assertion that if the December 31, 1968, will is to be admitted to probate, testator must have had knowledge of the contents of that will. Blume v. Hartman, 115 Pa. 32, 39, 8 Atl. 219, 222 (1887); see 1 Bowe-Parker: Page on Wills, ยง 5.8. For a will is defined as "'the legal declaration of a man's intentions, which he wills to be performed after his death' . . ." Sciutti Estate, 371 Pa. 536, 539, 92 A.2d 188, 189 (1952) (quoting Blackstone). And if a decedent had no knowledge of the contents of a document purportng to be his will, it cannot be said that such a document is a declaration of that decedent's intentions.

Although proof of execution of a will raises the presumption that testator had knowledge of its contents, Spence's Estate, 258 Pa. 542, 547, 102 Atl. 212, 214 (1917); Frew v. Clarke, 80 Pa. 170, 180 (1876), proponents did not merely rely on this presumption. Instead, although Attorney Stern admitted that testator never read the will which he signed on December 31, 1968, either on that date or subsequently,*fn3 Attorney Stern did testify that he prepared the probated will in accordance with testator's express instructions that he wanted to leave his entire estate to his wife. Furthermore, Attorney Stern testified that when he visited testator in the hospital on December 31, 1968, he explained the provisions of the probated will to testator. In order to counter Stern's testimony, appellant and a Sol Berman testified that testator indicated subsequent to December 31, 1968, that he wanted to divide his assets equally between his wife and his son. However,

[ 445 Pa. Page 554]

    after reviewing all this testimony, we cannot say that the chancellor's finding that testator had knowledge of the contents of the December 31, 1968, will was erroneous.

Accordingly, the decree of the orphans' court is affirmed. Each party to pay own costs.

Disposition

Decree affirmed.


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