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HEINEY WILL (03/25/74)

decided: March 25, 1974.

HEINEY WILL


Appeal from decree of Court of Common Pleas, Orphans' Court Division, of Lancaster County, No. 345 1/2 of 1969, in re estate of Samuel C. Heiney, deceased.

COUNSEL

Joseph D. Shein, with him Menno B. Rohrer, for appellants.

James F. Heinly, with him Lawrence J. Ruggiano, for appellees.

Jones, C. J., O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Eagen took no part in the consideration or decision of this case.

Author: Roberts

[ 455 Pa. Page 575]

For six months prior to his death, Samuel C. Heiney was aware that he had terminal cancer. During this period his physical condition deteriorated rapidly. Seventeen days prior to his death, Heiney executed a will devising his farm to his son L. Russell Heiney*fn1 and directing the residue of his estate to be converted

[ 455 Pa. Page 576]

    into cash and divided equally*fn2 among his eight children.*fn3

Six of decedent's eight children challenged the will. The only evidence presented to the register of wills by contestants was the testimony of a handwriting expert. The proponents of the will called the subscribing and attesting witnesses. The register found the signature genuine and concluded that contestants failed to establish either lack of testamentary capacity or undue influence.*fn4

In the orphans' court, the challengers requested that a jury be impanelled to decide the issue of testamentary capacity. The court refused this request and filed an opinion in support of its decision. After taking extensive testimony, the court affirmed the register's decree and issued a second opinion. This appeal followed.*fn5 We affirm.

Appellants have concentrated their attack upon the alleged lack of testamentary capacity. They contend that the orphans' court erred in placing upon them the burden of proving the decedent's lack of capacity. While admitting the general rule is that testamentary capacity is presumed, Brantlinger Will, 418 Pa. 236, 210 A.2d 246 (1965); Williams v. McCarroll, 374 Pa. 281, 97

[ 455 Pa. Page 577]

A.2d 14 (1953), appellants assert that this case falls within an ...


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