Martin W. Sheerer, Dillman, Sheerer & Schuchert, Pittsburgh, for appellant.
Joseph L. Wilson, Pittsburgh, for appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen and Manderino, JJ., concur in the result. Jones, C. J., did not participate in the consideration or decision of this case.
This is a will contest. At issue is whether the documents, a will and two codicils thereto,*fn1 admitted to probate by the Register of Wills of Allegheny County, Pennsylvania, as the Last Will and Testament of Oscar T. Ziel, Sr., deceased, must be set aside because of decedent's alleged testamentary incapacity at the times when each was executed and the undue influence allegedly exerted on the decedent by Lucy W. Ziel, his sister and coexecutrix of his estate, with whom decedent had been living for nearly four years prior to his death on June 24, 1972.
The testator, a widower, was a medical doctor and at the time of his death was 73 years of age. He was survived by two sons, Oscar T. Ziel, Jr. and the contestant Harry K. Ziel, the appellant here, and the testator's sisters, Lucy Ziel and Alice A. Ziel. Oscar, Jr. is a farmer in Allegheny County. Harry, a resident of California, is also a doctor. In 1968, the testator resigned from a staff position at Ohio Valley Hospital and retired from an active private practice in the McKees Rocks area of Allegheny County. He then went to live with his sisters, Lucy and Alice, two retired school teachers, in Crafton, Pennsylvania. He remained there until his death on June 24, 1972.
In his will, executed April 17, 1971, Dr. Ziel made four pecuniary bequests to friends and relatives and left all of his tangible personal property to his two sisters, Lucy and Alice. The remainder of the estate was given to Mellon National Bank and Trust Company to be held under
an inter vivos Deed of Trust executed the same day as the will. Under the terms of that instrument, the principal was to be divided into two equal shares, one for Lucy and one for Alice; each sister was to receive income from her share for life, with the right in the trustee to invade principal if necessary to provide for the welfare or comfortable support of either. Upon the death of each sister, her share of the trust estate was to be divided and paid over as follows: forty per cent to Harry K. Ziel (or his issue if he were deceased); forty per cent to Oscar T. Ziel, Jr. (or his issue if he were deceased); and the remaining twenty per cent to the testator's grandchildren (children of Oscar T. Ziel, Jr.). The codicil of November 8, 1971, devised any real estate owned by the testator at the time of his death to Oscar T. Ziel, Jr. and his children (Oscar, Jr. to receive 50% thereof, and his children jointly the other 50%). By the codicil of March 18, 1972, Dr. Ziel added specific bequests of $25,000 to each of his two sons, Oscar, Jr. and Harry.
Harry K. Ziel appealed from the admission of these documents to probate. After a hearing, the court ruled that Dr. Ziel was possessed of the requisite testamentary capacity when he executed each of the challenged documents and was not subject to undue influence in connection with their formulation. Exceptions by the contestant were overruled by the court en banc. This direct appeal followed.*fn2
Our review in these cases is limited to determining whether the findings of fact approved by the court en banc rest on legally competent and sufficient evidence, and whether an error of law has been made or an abuse of discretion committed. In re Estate of Fickert, 461 Pa. 653, 337 A.2d 592 ...