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ESTATE HERBERT C. DUNLAP (02/28/77)

decided: February 28, 1977.

IN RE ESTATE OF HERBERT C. DUNLAP, DECEASED. APPEAL OF GERALDINE ZETTLEMOYER


COUNSEL

Dale A. Reichley, Quakertown, for appellant.

George Q. Hardwick, Spring House, for appellee, Herbert C. Dunlap, Jr., executor.

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

Author: Roberts

[ 471 Pa. Page 305]

OPINION OF THE COURT

Herbert C. Dunlap died on January 8, 1974. By a will dated July 9, 1969, he left his estate to his three children, Geraldine Zettlemoyer, Kenneth Dunlap and Herbert C. Dunlap, Jr. in equal shares. A codicil dated December 4, 1973, however, reduced the share of appellant, Geraldine Zettlemoyer, to twenty per cent and increased the shares of each son to forty per cent. Appellant filed a Petition Sur Appeal from the Register of Wills' probate of the codicil. Appellant asserted that the codicil was invalid because it was procured through the undue influence of Herbert C. Dunlap, Jr. After appellant presented her evidence, the Orphans' Court granted appellee's motion for a non-suit. In this appeal,*fn1 appellant contends that it was improper to grant the non-suit. We conclude that the non-suit was properly granted and affirm the decree of the trial court.

The power of the orphans' court to enter a non-suit derives from section 779 of the Probate, Estates and Fiduciaries Code.*fn2 Section 779 provides, in pertinent part:

"(a) In general. -- The orphans' court division may enter a non-suit under the same circumstances, subject to review in the same manner and with the same effect as in an action at law.

(b) Will contest. -- A non-suit may be entered against a contestant in a will contest whenever the contestant has the burden of overcoming the presumption of validity arising from due proof of execution as required by law and the contestant has failed to satisfy that burden."

[ 471 Pa. Page 306]

In actions at law, a non-suit may be granted at the close of plaintiff's case only when it is clear that plaintiff has presented insufficient evidence to maintain the action. See Exposito v. Dairymen's League Cooperative Assoc'n, Inc., 236 Pa. Super. 401, 344 A.2d 505 (1975). In ruling on a non-suit, the trial court views the evidence in the light most favorable to plaintiff and gives plaintiff the benefit of all favorable evidence and all reasonable inferences therefrom. E. g., Tolbert v. Gillette, 438 Pa. 63, 260 A.2d 463 (1970); Flagiello v. Crilly, 409 Pa. 389, 187 A.2d 289 (1963).

Herbert C. Dunlap, Jr., the proponent of the codicil, established the formalities of execution without opposition. This created a presumption of lack of undue influence. See In re Estate of Clark, 461 Pa. 52, 334 A.2d 628 (1975). Appellant, then, had the burden of establishing by clear and convincing evidence that

". . . 1) when the will was executed the testator was of weakened intellect, and 2) that a person in a confidential relationship with the testator 3) ...


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