Clifford A. Weisel, Weisel, Xides & Conn, Pittsburgh, for appellant.
Martin W. Sheerer, Dillman, Sheerer & Schuchert, Pittsburgh, John Sughrue, Clearfield, for appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., did not participate in the consideration or decision of this case.
This is an appeal from a decree of the Court of Common Pleas of Allegheny County, Orphans' Court Division, sustaining an exception to the account filed by John H. Smith, as executor of the estate of Alice G. Clark.*fn1 The instant appeal represents the second time matters related to the estate of Mrs. Clark have been before this Court. See Estate of Alice G. Clark, 461 Pa. 52, 334 A.2d 628 (1975). The background and circumstances giving rise to this particular appeal are as follows:
On November 12, 1971, John H. Smith wrote at Alice G. Clark's request what purported to be Mrs. Clark's last will and testament. That document made fourteen specific legacies totaling $56,000.00 among which were a $5000.00 bequest to Harry S. Leech, Mrs. Clark's nephew, and his wife, and a $10,000.00 bequest to Lyda Smith, wife of John H. Smith. The remainder of the estate, constituting approximately $135,000.00, was left to John H. Smith, a first cousin, as residuary beneficiary. Smith was also made executor without bond under the will. Alice G. Clark died on April 22, 1972 at age 77.
On April 26, 1972, the above will was admitted to probate. Harry S. Leech appealed from the order of the Register of Wills alleging that the decedent lacked testamentary capacity and/or that the contested writing was procured by undue influence and duress practiced upon Mrs. Clark by John H. Smith. The Court of Common Pleas of Allegheny County, Orphans' Court Division, found that Mrs. Clark possessed testamentary capacity at the time the will was made. However, that court found that Mrs. Clark suffered from diminished mental and physical capacities; that a confidential relationship between Smith and Clark existed at that time; and that Smith exercised undue influence over Mrs. Clark in procuring his place in the will. The court decree that the residuary clause of the will and Smith's appointment as executor be set aside and also directed the revocation of the letters testamentary which had been granted to Smith. Exceptions to that ruling were filed and dismissed by the court en banc. This court affirmed. See Estate of Clark, supra.
Subsequently, Smith filed an inventory and account in the above estate which, inter alia, listed $21,510.08 as a gift from Mrs. Clark to Smith on December 6, 1971. Leech filed exceptions to the account, inter alia, challenging Smith's claim that Mrs. Clark had made him a gift of the $21,510.08. An evidentiary hearing ensued.*fn2
The only evidence offered to establish a gift was the testimony of John H. Smith and his wife Lyda*fn3 presented at the will contest hearing which can be summarized as follows. John H. Smith testified that in late
November of 1971, Mrs. Clark contacted the Dollar Savings Bank concerning the procedure necessary to close a savings account she had with that institution. She then directed John H. Smith, who was, and had been, handling her business affairs and possessed a power of attorney to sign checks on her behalf, to take whatever steps were necessary to close the account but not to finalize the transaction until after the interest payable for the month of November was credited to the principal. On December 3, 1971, Mrs. Clark prepared a signed withdrawal slip and directed Smith to finalize the transaction. Smith returned with a check in the amount of $23,010.08, drawn on the Dollar Savings Bank and made payable to Mrs. Clark. On December 6, 1971, Mrs. Clark endorsed the check without restriction and instructed Smith to return $1,500.00, intended for her use in buying Christmas presents, but to keep the balance as a gift from Mrs. Clark to Smith and his wife. Smith testified that he objected the gift was excessive but that Mrs. Clark insisted he take the money and invest it for his own benefit. That same ...