No. 100 March Term 1978, Appeal from the Decree of the Court of Common Pleas of the 37th Judicial District of Pennsylvania, Warren County Branch, Orphans' Court Division at No. O.C. 90 of 1977.
Bernard J. Hessley, Warren, for appellants.
William F. Morgan, Warren, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen and Flaherty, JJ. Manderino, J., did not participate in the decision of this case.
This is a will contest. The appellants, contestants in the court below, challenge the final decree of the Court of Common Pleas of Warren County, Orphans' Court Division, upholding a written instrument as the last will and testament of Andrew Kuzma, deceased. The appellants, Michael Kuzma and Florence Savko, are two of the decedent's six surviving children. His wife and two children preceded him in death.*fn1
The decedent died on January 30, 1977. The challenged instrument is dated and was executed on February 23, 1970 while the decedent was a patient in the Corry Community Hospital. The instrument is a printed form captioned "Last Will and Testament" which contained blank spaces permitting inclusion of the designation of the names of the maker of the will and those who are to receive and administer his
or her estate. The instrument in pertinent part directs that the residue of the estate (in effect the net estate, since no specific legacies are provided for)*fn2 be given to Paul Kuzma, a son, and Martha Komenda, a daughter. These same two children are designated as executor and executrix, respectively. According to uncontradicted testimony in the trial court, the blanks in the instrument, providing for the disposition of the estate and appointments of the testator's representatives, were all filled in by Martha Komenda, one of the two beneficiaries, in the presence of the decedent and at his direction. Additional uncontradicted testimony established that an attorney was also present and that he read the completed instrument to the decedent following which the decedent expressed his satisfaction and signed his name thereto. It was witnessed by three disinterested witnesses.
Further uncontradicted testimony established the decedent was admitted to the hospital on February 16, 1970 after complaining of intense pain in the abdomen and while suffering nausea and fever. Following admission, an examination revealed, inter alia, jaundice, hernia, and an enlarged liver. The decedent was described as critically ill. On February 23, the day of the signing of the "Last Will and Testament," the decedent was given demerol to relieve pain. On the following day, February 24, he underwent surgery to relieve peritonitis, a hernia, and a stone in the common duct of the gall bladder.
First, the appellants complain the trial court erred in finding the decedent possessed testamentary capacity at the time of the execution of the instrument. They point with emphasis to the testimony of two physicians, Dr. Cruz and Dr. Tate, who attended the decedent in the hospital and who stated that, on the day in question, decedent was very ill physically, probably suffering severe pain, and lacked testamentary capacity. Dr. Tate said ...