No. 80-3-468, Appeal from the Decree entered March 7, 1980, of the Court of Common Pleas of Philadelphia, Orphans' Court Division, No. 3244 of 1977.
William L. Zeitz, Philadelphia, for appellant.
Harry R. Nixon, Hatboro, for Lloyd A. Smith.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Roberts, J., files an Opinion in Support of Affirmance, joined by O'Brien, C. J., and Larsen, J. Flaherty, J., files an Opinion in Support of Reversal, joined by Nix and Kauffman, JJ.
The Court being equally divided, the decree of the Orphans' Court Division of the Court of Common Pleas of Philadelphia County is affirmed. Each party to pay own costs.
OPINION IN SUPPORT OF AFFIRMANCE
This is an appeal from the unanimous decree of the Orphans' Court Division of the Court of Common Pleas of Philadelphia County, sitting en banc, which denied the admission of the will of decedent Susanna H. Proley to probate. The court en banc affirmed the finding of the auditing judge that, in writing her name on a printed will form in the portion normally used for identifying the document when properly folded, decedent failed to comply with the statutory requirement that a will be signed "at the end thereof," 20 Pa.C.S.A. § 2502, and therefore failed to execute a valid will. Because the unanimous decree of the court en banc is based on a correct and consistent reading of all the cases in which this Court has interpreted this legislative mandate, it should be affirmed.
In a misguided effort to effect what they perceive to be decedent's intent, the members of this Court who would reverse the decree make two flawed assertions. First, they contend that, because the identification section of the will appears on what they consider the final page, decedent "evidently" believed she was signing her will at its end. This purely speculative argument ignores the consistent holdings of this Court that a decedent's intent or belief is irrelevant to a determination of whether his signature appears at the end of his will. "The question is not what a testator mistakenly thinks he is doing, but what he actually does." Bryen's Estate, 328 Pa. 122, 128, 195 A. 17, 20 (1937); accord, Glace Will, 413 Pa. 91, 196 A.2d 297 (1964); Kretz Estate, 410 Pa. 590, 189 A.2d 239 (1963); Baldwin Will, 357 Pa. 432, 55 A.2d 263 (1947); Coyne Will, 349 Pa. 331, 37 A.2d 509 (1944); Brown Estate, 347 Pa. 244, 32 A.2d 22 (1943); Churchill's Estate, 260 Pa. 94, 103 A. 533 (1918); Dietterich's Estate, 127 Pa. Super. 315, 193 A. 158 (1937).
The Opinion in Support of Reversal then asserts that, in any event, decedent complied with the statutory requirement by signing her will ...