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.
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
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,
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 ...