No. 31 March Term, 1977, Appeal from the Decree dated August 10, 1976, of the Court of Common Pleas, Indiana County, Pennsylvania, Orphans' Court Division at No. 32-74-159.
James A. Meyer, St. Mary's, for appellant.
William T. Pierce, Indiana, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Pomeroy, J., filed a dissenting opinion in which O'Brien and Roberts, JJ., joined.
This is an appeal from a decree of the Orphans' Court Division of the Court of Common Pleas of Indiana County, affirming the admission to probate of a disputed instrument dated March 2, 1974 and purported to be the Last Will and Testament of John W. Ritchie.
John W. Ritchie died April 20, 1974, a resident of Indiana County, Pennsylvania. On May 17, 1974, the Register of
Wills of Indiana County admitted to probate a writing dated March 2, 1974, alleged to be John W. Ritchie's Last Will and Testament. Letters Testamentary were granted to Aileen Stake, Executrix. Appellant, Betty M. Brisson, filed an appeal from the Register's Decree to the Orphans' Court of Indiana County. Following submission of briefs and a non-jury hearing, the court affirmed this instrument's admission to probate and the granting of Letters Testamentary to Aileen Stake. Betty M. Brisson filed an appeal to this Court.
The decedent, John W. Ritchie, left to survive him as his only heirs at law Ina Ritchie, his wife, from whom he had been separated from 1960 to the time of his death; and Aileen Stake and Jane Furgeson, his daughters. All were adults at the time of decedent's death. Betty M. Brisson, appellant, had kept company with John W. Ritchie since 1945, and from 1960 to the date of his death had resided with Mr. Ritchie on his farm in West Mahoning Township. In addition, Betty M. Brisson acted as parts manager for a car dealership in Homer City, Pennsylvania, owned by the decedent until the end of 1972.
Appellant, Betty M. Brisson, claims to be a party in interest by virtue of another written instrument alleged to be the holographic last will and testament of John W. Ritchie, dated June 28, 1961. In the 1961 instrument, appellant was the named devisee of the decedent's real estate, a farm containing 61 acres more or less. This instrument was found after decedent's death in his personal safe at his residence located on the decedent's farm. This writing, which was on a printed will form, is entirely in the handwriting of John W. Ritchie except for the printed portion thereof, and reads as follows:
"I, John W. Ritchie, of 30 West Elm Street, Homer City, County of Indiana, and State of Pennsylvania, being of sound mind, memory and understanding, do make and publish this my last Will and Testament, hereby revoking Page 61} and making void all former Wills by me at any time heretofore made.
To Whom It May Concern, do here bye with my own free will and testament do will said property to Betty M. Brisson of 30 West Elm Street, Homer City, Pa. this property being in West Mahoning Twp. Indiana Co. being located on McCormick Road between Smicksburg and McCormick Slatw and Georgeville along little Mahoning Creek the acreage 61 acres more or less the lewis farm on West also Goverment, dam Pond on south West Georg Roush land on East side Emma Elkin land on North side. Deed no -- 5001 -- up on my Death this Betty M. Brisson shall become sole owner of this said farm with no Encumbrance the Z T Ritchey et ux to S A. Ritchie Smicksburg, Pa. # 2
The instrument was notarized on the reverse side, albeit misplaced in the space provided for testator's signature.
The later instrument, admitted to probate, also allegedly disposes of the 61 acre farm, thereby revoking the prior instrument by inconsistency. This instrument was written on paper from a memorandum pad bearing "New Super Kool -- Seal" advertising, and was in the possession of Aileen Stake at the time of decedent's death. The probated instrument reads as follows:
lawn mower cub 300 savage
carriage trailer 22 single
cachman trailer 22 Revolver
Farm 61 acres 12 g. shotgun
tools & garage equipment Chev
shall be divided 50/50 Truck