Appeal from decree of Court of Common Pleas, Orphans' Court Division, of Philadelphia, No. 2148 of 1961, in re: estate of James J. McCaffrey, deceased.
George S. Forde, Jr., with him James E. Gallagher, Jr., Herman J. Obert, Stradley, Ronon, Stevens & Young, and Gibbons, Eustace & Obert, for appellants.
James R. Caiola, for appellee.
Harry N. Moran, Jr., for administratrix, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Chief Justice Jones. Mr. Justice Eagen joins in this dissenting opinion.
James J. McCaffrey died on March 16, 1961, leaving two testamentary instruments -- a holographic will dated in 1939, and a conformed copy of a 1947 will.*fn1 Both instruments were lodged with the register of wills but only the 1939 document was offered for probate. In
, the register of wills determined that the 1947 will could not be probated and that the 1939 writing should be admitted to probate. Appellee -- administratrix of the heir-at-law -- appealed to the Orphans' Court of Philadelphia which vacated probate of the 1939 will. The court en banc dismissed exceptions and, on November 10, 1966, ordered that the record be remanded to the register of wills so that the 1947 will could be offered for probate. We quashed an appeal from that determination on November 28, 1967.
Thereafter, in accordance with the decree of the orphans' court, the register of wills considered the 1947 testamentary writing and admitted it to probate.*fn2 Appellee again appealed to the orphans' court which set aside probate of the 1947 will. The court en banc dismissed appellants' exceptions and this appeal followed. We now reverse.
Appellants contend that the orphans' court erroneously held that the 1947 will was revoked. In 1953, decedent's home was burglarized and the 1947 will was among the items stolen. Although decedent knew of the theft, he made no other will during the seven years prior to his death. The orphans' court concluded from this inaction that decedent revoked his 1947 testamentary instrument.*fn3
We hold that the 1947 will should be admitted to probate and distribution should be made to the charities in accordance with that last, valid testamentary instrument. The record fails to disclose that the 1947 will was revoked in a manner prescribed by Section 5 of the Wills Act, Act of April 24, 1947, P. L. 89, § 5, 20 P.S. § 180.5 (1950).*fn4 That section provides:
"No will or codicil in writing, or any part thereof, can be revoked or ...