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ESTATE ROCCO BUTTON (11/22/74)

decided: November 22, 1974.

IN RE ESTATE OF ROCCO BUTTON, A/K/A ROCCO BOTTON, DECEASED. APPEAL OF FLORENCE LERUM ET AL.


COUNSEL

Milton D. Rosenberg, W. Bryan Pizzi, II, Bloom, Bloom, Rosenberg & Bloom, Washington, for appellants.

John F. Bell, Washington, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.

Author: Jones

[ 459 Pa. Page 235]

OPINION OF THE COURT

Rocco Botton died on August 8, 1969, survived by two daughters and a son, -- Florence Lerum, Viola Bergmann and Samuel Botton, respectively. Marie Selvoski and Charles Selvoski, Jr., her husband (who were not related

[ 459 Pa. Page 236]

    in any manner to deceased), presented for probate to the Register of Wills of Washington County an alleged will purportedly executed by deceased on March 21, 1969, and the Register of Wills accepted this will for probate. Under the provisions of this will, deceased left $1.00 to each of his three children, bequeathed the residue of his estate to the three minor children of the Selvoskis and named Marie Selvoski and Charles Selvoski, Jr. as decedent's personal representatives. On August 16, 1969, deceased's children appealed from the probate of the will to the Orphans' Court Division of the Court of Common Pleas of Washington County. After a hearing at which extensive testimony was taken, the court denied an issue devisavit vel non, upheld the validity of the will and entered a decree affirming the probate of the will. From that decree this appeal followed.

The parties to this appeal agree that deceased did execute the will. However, appellants allege that at the time the writing was executed by deceased, his physical and mental condition had been gravely impaired by illness and infirmity, that he lacked testamentary capacity, and that the writing was procured by undue influence, duress and constraint practiced upon the deceased by the Selvoskis, who had physically and mentally held him "captive" from March 1969 until August 8, 1969, the date of his death.

The issues before this Court are whether the evidence before the chancellor sustained the findings that deceased at the time of the writing's execution was of sound mind and capable of disposing of his estate by will and that the writing was not procured by the undue influence of the Selvoskis.*fn1

[ 459 Pa. Page 237]

Deceased was a widower of many years. His three children were married and resided apart from their father. In his later years, deceased occupied only a portion of his farmhouse and leased the remainder, over the years, to various persons, including Mrs. Selvoski's parents.

Mr. Botton had been hospitalized several times during the two-year period before his death. In late 1968, after one such hospitalization, he took up temporary residence with his son, Samuel. A few weeks later, however, when Samuel's wife became ill, deceased went to live at a friend's home for a short time. Samuel had made arrangements for deceased to enter the Washington Manor Convalescent ...


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