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SMITH ESTATE (01/24/74)


decided: January 24, 1974.


Appeal from decree of Court of Common Pleas, Orphans' Court Division, of Delaware County, No. 172 of 1969, in re estate of James Smith, deceased.


C. William Kraft, III, with him Michael T. McDonnell, Jr., James E. Beasley, and Beasley, Albert, Hewson & Casey, for appellant.

Garland D. Cherry, with him Joseph M. Fioravanti, and Kassab, Cherry and Archbold, for appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Chief Justice Jones.

Author: Jones

[ 454 Pa. Page 535]

This is an appeal from a decree of the Orphans' Court Division of the Court of Common Pleas of Delaware County holding that a will admitted to probate by the Register of Wills was neither a forgery nor invalid by reason of a material alteration.

By a will drawn March 11, 1967, decedent, then seventy-nine years of age, gave his entire estate to his twenty-eight year old nurse, Billie Hetrick, appellant herein. On April 3, 1967, twenty-three days later, decedent executed a second will, leaving his entire estate to his only surviving heir-at-law, his fifty-eight year old son, Vincent. The decedent died on June 17, 1968;*fn1 Vincent Smith offered the will dated April 3, 1967, for probate; Billie Hetrick filed objections and, after taking testimony, the Register of Wills dismissed the objections and admitted the April 3 will to probate.*fn2 Billie Hetrick appealed under Section 208 of the Orphans' Court Act of June 30, 1972, P. L. 164, § 3, 20 Pa. S. §§ 701-794 (1973). The Orphans' Court Division held

[ 454 Pa. Page 536]

    hearings de novo and affirmed the action of the Register of Wills.*fn3 This appeal followed.

Appellant maintains that the April 3, 1967, will was improperly admitted to probate because decedent's signature was forged and because other material alterations were made.*fn4 She contends that five separate and distinct defects in this document preclude it from being a properly executed document: (1) the numeral 7 of 1967 on the face of the will was typed over another character that had been erased; (2) the backer on the will has additional staple holes and scratches indicating its removal from an existing document and replacement on a different one; (3) the scrivener testified that the will was typed by his secretary on a Remington typewriter, but it was actually typed on an IBM typewriter; (4) the decedent's signature was made with a fountain pen, but dots and holes, filling in an outline of that signature and uniquely peculiar to a ballpoint pen, appear on the will;*fn5 (5) impressions on page 2 of the will did not match up with underlinings which appeared on page 1.

The law is clear that the party contesting the admission of a will to probate has the burden of proof in challenging the validity of the will. Simon's Estate, 381 Pa. 284, 113 A.2d 266 (1955). To prove a motive for the forgery appellant introduced evidence that the decedent lived with her, loved her, planned to marry her,

[ 454 Pa. Page 537]

    and intended to "leave everything to her."*fn6 She also introduced evidence of decedent's disparaging remarks about his son, Vincent, in an effort to show his lack of love and concern for Vincent. Appellant presented uncontroverted evidence that a valid will naming her as beneficiary was prepared by her attorney and signed by decedent on March 11, 1967.*fn7 However, the appellee's evidence indicates that, after executing the March 11, 1967, will, decedent telephoned his attorney, Mr. Pappano, told him that he had signed some papers at Billie's request, and asked him what to do in the event that he had signed another will so that his son would remain the sole beneficiary. Mr. Pappano directed him to write a new will and, accordingly, Mr. Pappano had his secretary type a new will reaffirming the provisions of the 1964 will. Mr. Pappano testified that he and Dr. Glenn White, decedent's physician, witnessed the signing of this new will by decedent on April 3, 1967, in decedent's apartment.

Appellant introduced two handwriting experts in an effort to prove that the signature on the April 3 will was a forgery and that the will was materially altered. However, in Cline Will, 433 Pa. 543, 252 A.2d 657 (1969), this Court recognized that in a will contest opinion evidence is of little value when weighed against positive evidence by witnesses whom the chancellor considers credible. See also Elias Will, 429 Pa. 314, 329 A.2d 393 (1968); Pochron Will, 367 Pa. 306, 80 A.2d 794 (1951).

Although the facts of this case might have supported a contrary result, the record reveals that there is adequate testimonial support for the chancellor's findings and that the chancellor did not capriciously disbelieve the testimony, abuse his discretion, or commit an error

[ 454 Pa. Page 538]

    of law. Consequently, our opinion in Cline and the restrictive scope of our appellate review compel us to sustain the instant decree in this respect.*fn8

On the material alteration issue, appellant's expert witnesses opined that the number 7 in the date on the face of the will had been typed over another number that had been erased, that additional staple holes were present on the face of the will, that impressions on page 2 of the will did not match up with underlinings which appeared on page 1, and that the will was typed on an IBM typewriter whereas Mr. Pappano testified that his secretary typed it on a Remington typewriter. However, the chancellor was not impressed with the credibility of these experts and decided that appellant had not met her burden of proof.*fn9 It is well settled that: "The findings of fact by the Chancellor, approved by a court en banc, have the weight and effect of a jury verdict

[ 454 Pa. Page 539]

    and must be accepted at the appellate level unless such findings lack evidentiary support or unless the Chancellor has capriciously disbelieved evidence or abused his discretion or committed an error of law." Cline Will, 433 Pa. 543, 547, 252 A.2d 657, 660 (1969). See also Elias Will, 429 Pa. 314, 329 A.2d 393 (1968); Zeedick Will, 421 Pa. 44, 218 A.2d 755 (1966); Kadilak Will, 405 Pa. 238, 174 A.2d 870 (1961).

Again the record contains evidentiary support for the chancellor's findings and we do not believe the chancellor abused his discretion in making such findings.

Decree affirmed. Appellant to pay costs.


Decree affirmed.

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