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ESTATE GERTRUDE FICKERT (05/13/75)

decided: May 13, 1975.

IN RE ESTATE OF GERTRUDE FICKERT, DECEASED. APPEAL OF JOSEPH J. LORD ET UX.


COUNSEL

Anthony C. Falvello, Michael J. Hudacek, Plymouth, Conrad A. Falvello, Falvello, Ustynoski, Giuliani & Bernstein, Hazleton, for appellants.

Harry R. Hiscox, Rosenn, Jenkins & Greenwald, Wilkes-Barre, for appellee, Walter Platt Smith, III.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy and Manderino, JJ. Nix, J., did not participate in the consideration or decision of this case.

Author: Roberts

[ 461 Pa. Page 655]

OPINION OF THE COURT

This is an appeal from a decree holding certain portions of a will invalid on the ground that those portions had been procured by the use of undue influence.*fn1 Appellant claims 1) that certain instructions given to the advisory jury were erroneous and confusing and 2) that the evidence is insufficient to support the finding of undue influence. We affirm.

We are unsure that erroneous jury instructions could ever be a basis for reversal in this type of case. Section 777 of the Probate, Estates & Fiduciaries Code, 20 Pa.C.

[ 461 Pa. Page 656]

S. ยง 777 (Special Pamphlet, 1972), provides, in pertinent part:

"(c) When a contest shall arise concerning the validity of a writing alleged to be testamentary, or concerning any matter other [not covered by certain provisions not relevant here], the orphans' court division in its discretion . . ., may impanel a jury to decide any question of fact, but the verdict of the jury shall be advisory only."

The statute confers no right to jury trial and the jury verdict is only advisory. Consequently, it is doubtful that any error in instructing the jury would ever be prejudicial error. Appellant offers no authority for the proposition that a reversal can be predicated on such an error and our own research has discovered none. However, we need not decide this point to dispose of this case.

Appellant contends that part of the charge was confusing and erroneously instructed the jury on the burden of proof.*fn2 ...


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