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decided: February 4, 1981.


No. 80-1-65, Appeal from the Decree of Court dismissing Exceptions dated February 26, 1980, of the Court of Common Pleas of Allegheny County, Orphan's Court Division At No. 2078 of 1978.


Archie V. Diveglia, Harrisburg, for appellant.

Jack Palkovitz, McKeesport, for appellee.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Roberts, J., filed a dissenting opinion in which Larsen, J., joined.

Author: Kauffman

[ 492 Pa. Page 479]


This is an appeal by the grandchildren of Frances Lucy Laurin ("testatrix"), from a final decree of the Orphans' Court Division of the Court of Common Pleas of Allegheny County dismissing their exceptions to the probate of a writing dated March 16, 1978.*fn1

The specific issue before us is whether the court below correctly determined that a validly executed informal writing using only non-testamentary language in the present tense was the last will and testament of the testatrix. Because the record adequately supports the conclusion that testatrix intended the writing to be testamentary, we affirm.

On November 6, 1974, testatrix executed a formal will in which she left her entire estate equally to her two daughters, Beatrice L. Sprowls ("Beatrice")*fn2 and Virginia F. Fleming ("Virginia"). In the event that one or both of the primary beneficiaries predeceased testatrix, the will provided for distribution of the estate to her surviving grandchildren per stirpes.*fn3

[ 492 Pa. Page 480]

On September 11, 1976, Virginia predeceased testatrix, leaving as survivors her three children, Susan L. Fleming, Richard E. Fleming, and Lori M. Fleming, appellants herein. Following the death of testatrix on April 22, 1978, the Register of Wills ("Register") admitted the November 6, 1974 will to probate. However, a later inconsistent writing, dated March 16, 1978 and signed at the end by testatrix, was discovered among her personal effects.*fn4 Therein, she gave "all properties and personal belongings" to her daughter, Beatrice. Appellants, beneficiaries under the prior will, appealed from the Register's admission of this informal document to probate, challenging its testamentary character. After a hearing before the Orphans' Court, their appeal was dismissed. The court en banc, concluding that the document was testamentary on its face, thereafter dismissed appellants' exceptions, and this appeal followed.

The March 16, 1978 writing provides in its entirety:

March 16, 1978

I, Frances L. Laurin, give all properties and personal belongings to my daughter Beatrice L. Sprowls Denk.

/s/ Frances L. Laurin

The circumstances surrounding the document here in question may be stated briefly. At the time of its preparation, testatrix was 73 years of age and in poor health.*fn5 She lived with and was cared for by Beatrice for several months prior to her death. Occasionally, a neighbor, Janet Brian ("Janet"), also cared for her. Janet testified that on one such occasion, testatrix declared that she had a great deal of property, "that she had a lot to take care of with the death of her daughter [and] with Betty's [Beatrice's] remarriage,"

[ 492 Pa. Page 481]

    and that she wanted everything to go to Beatrice.*fn6 She also expressed a wish to see a lawyer in order to attend to these matters. Although Janet typed the contested writing for testatrix, she did not witness its execution. Beatrice first learned of the writing only after testatrix' death when informed of its existence by Janet.

Appellants challenge the testamentary character of the March 16, 1978 writing, contending that the use of non-testamentary language in the present tense renders it ambiguous, and that the court below erred in failing to consider extrinsic evidence to resolve the ambiguity. They argue further that consideration of such evidence would show that testatrix merely intended to make either a present gift or a memorandum to her attorney.*fn7

In Kauffman's Will, 365 Pa. 555, 558, 76 A.2d 414, 417 (1950), this Court adopted guidelines to be followed where the testamentary character of a writing is challenged:*fn8

In all cases of this kind where a paper is proposed for probate and its testamentary character is denied, it becomes the duty of the Court in the first instance to examine the paper, its form and its language, and therefrom determine as a matter of law whether or not it shows testamentary intent with reasonable certainty. If testamentary intent is satisfactorily revealed from such an examination by the Court, the paper should be probated as a will.

On the other hand, if, from such examination, the paper is shown not to be a testamentary disposition, but is shown to be a document of another type, then it is not to

[ 492 Pa. Page 482]

    be probated as a will. But, if, from such an examination, the Court should determine that a real doubt or real ambiguity exists, so that the paper offered for probate might or might not be testamentary, depending upon circumstances, then it has been held on numerous occasions by the Appellate Courts that the document presents an ambiguity which will permit the use of extrinsic evidence in aid of resolving the uncertain character of the paper. (Citations omitted).

Although we found the language "i want you to have farm" to be ambiguous, we then considered the extrinsic evidence and concluded that it was in fact intended to be testamentary.*fn9

An informal writing using present tense language similar to that now before us recently was held unambiguously testamentary in Estate of Logan, 489 Pa. 29, 413 A.2d 681 (1980). The disputed writing there provided:

"I here buy sent [sic] my hand and seal to any one enterseted [sic] to my estate, that I give all my monies & estates to my sister Lillian Grundman nee Logan as benefecesitay [sic] to all an [sic] any.

Your truly

     as ever

George T. Logan

The Same-Lillian Grundman

S.S. No. 198-03-7882 G.L."

We found no need to consider extrinsic evidence in Logan because use of the words "estate" and "beneficiary", along with the decedent's manifest intent to divest himself of all his belongings, clearly evidenced a testamentary disposition.

Testatrix' March 16, 1978 writing, however, contains no language indicating that it was drafted in contemplation of death or that it was intended to be testamentary. Use of

[ 492 Pa. Page 483]

    the word "give" alone, absent other language indicative of a decedent's intent to make either an inter vivos gift or a testamentary disposition, renders the writing ambiguous and necessitates consideration of extrinsic factors.*fn10

While we do not agree with the court en banc that the March 16, 1978, writing is testamentary on its face, we nevertheless conclude, after reviewing the surrounding circumstances, that the court correctly held the writing to be testamentary.*fn11 It was prepared by testatrix while she was ill, only one month before her death and just eight days after she had been discharged from the hospital. Use of the language "all properties and personal belongings" demonstrates that testatrix intended to dispose of all of her worldly possessions. As she was living with Beatrice prior to the preparation of the writing, testatrix could have made delivery had she intended to make an inter vivos gift. Instead, she placed the writing, properly signed at the end, in a drawer, leaving Beatrice unaware of its existence until after her death.*fn12

[ 492 Pa. Page 484]

Thus, although we agree with appellants that the March 16, 1978 writing is not testamentary on its face, we nevertheless affirm the decree of the court en banc because the record adequately supports the conclusion that testatrix intended it to be her last will and testament.

Accordingly, the decree of the court below is affirmed with each party to bear own costs.

ROBERTS, Justice, dissenting.

I agree with the majority that the orphans' court erred in holding testamentary on its face the brief statement composed and typewritten by an acquaintance of testatrix and signed later by testatrix with no witnesses present. However, I cannot agree with the majority that "consideration of extrinsic evidence" requires the conclusion that testatrix intended the disputed writing to serve as her last will and testament and thus to supersede the formal will executed by testatrix with the aid of her attorney in 1974 and admitted to probate a week after her death. Because neither the character of the writing itself nor the extrinsic evidence supports the decree of the orphans' court, the decree should be vacated and the case remanded for an evidentiary hearing. Thus I dissent.

The only reference to extrinsic evidence by the orphans' court in support of its result is the comment: "If the language had been ambiguous on its face, the court might

[ 492 Pa. Page 485]

    have considered the extrinsic evidence given by [Janet] Brian [the lay scrivener] which required the same conclusion." From this statement it is difficult to tell what consideration, if any, the court gave to this evidence, which consisted of the deposition testimony of the only witness to the making of this disputed writing.

In fact, the testimony of Janet Brian provides considerable support for appellants' contention that testatrix intended to prepare not a will but simply a memorandum for her attorney, a memorandum which she never sent.*fn1 According to Brian, on March 16, 1978, Brian had agreed to care for testatrix during the evening while testatrix's daughter, appellee Beatrice Denk, was out of the house. In the course of a conversation between testatrix and Brian, testatrix stated that she had "a lot to take care of" and expressed a desire that "everything should be Betty's."*fn2 Brian remembered asking testatrix, "'Well, do you want me to type up something to send to the lawyer?' because she [decedent] mentioned the lawyer, she never mentioned the name." Testatrix replied, "'Okay.'" Brian then went upstairs to her own apartment and typed the writing at issue, entirely in her own words. Her choice of language was based on her perception of "how you would send something to a lawyer." She then gave the writing to testatrix, who received it without comment and without signing it in Brian's presence. At no time did either Brian or decedent mention the word "will."*fn3

[ 492 Pa. Page 486]

Testatrix and Brian never discussed the writing again. Indeed, testatrix appears never to have mentioned the writing to anyone, for her 1974 will, which divided her property equally between appellee and the children of testatrix's other daughter,*fn4 was admitted to probate without objection on April 27, 1978, five days after testatrix's death. The writing remained undiscovered in a "card box" on appellee's coffee table until some time in the summer of 1978 when Brian casually told appellee of the "favor" she had performed for testatrix: "then I mentioned that I had typed this thing, you know. I didn't even know it was a will or anything. I just thought I was doing the woman a favor. If I thought it was, I never would have gotten involved."*fn5

This, then, is the extrinsic evidence which the orphans' court "might have considered" as an alternative ground for its result, and which the majority deems an "appropriate" basis for affirmance. While it is certainly true that this Court may affirm the decision of the orphans' court if the result is correct on any ground, Mazer v. Williams Brothers Co., 461 Pa. 587, 337 A.2d 559 (1975), it is manifest that the testimony of Janet Brian does not provide such a ground.

The additional extrinsic evidence upon which the majority relies as support for its erroneous result is equally dubious. The majority observes that testatrix "prepared" the writing "while she was ill, only one month before her death and just eight days after she had been discharged from the hospital." Majority opinion at 1293. From this "evidence," the majority apparently infers that the writing was "prepared" in contemplation of death. What the majority fails to note, however, is that testatrix had been hospitalized for a foot ailment, serious and painful but hardly terminal, and that she died of pneumonia. Moreover, after her discharge from the hospital, testatrix constantly spoke of her desire to

[ 492 Pa. Page 487]

    return from Harrisburg, where she was living with appellee, to her home in Pittsburgh.*fn6 Indeed, a week before her death she informed her granddaughter Sharon Duey, appellee's daughter, that "[s]he had things she wanted to do [with her will] when she got back to Pittsburgh."*fn7

Deponent Duey's above-quoted recollection not only suggests that testatrix did not view her death as imminent but also provides additional support for appellants' contention that testatrix intended the writing simply as a memorandum to her attorney, a contention that the majority has overlooked. The majority views testatrix's failure to effect delivery of the writing to her daughter as evidence that testatrix intended the writing to function as a will rather than as an inter vivos gift of all her possessions.*fn8 Here, however, as distinguished from the cases cited by the majority, appellants do not argue that the writing represents a failed inter vivos conveyance. The issue is whether testatrix intended the writing to act as a revocation of the detailed 1974 will in the possession of her attorney or merely as an instruction to him to prepare a new will.

In this light, it is instructive to consider the observation of this Court in Forquer's Estate, 216 Pa. 331, 66 A. 92 (1907):

"Without doubt . . . the careful preservation of a regularly executed will up to the time of death is of importance in the construction of a subsequent paper of doubtful testamentary import, an instance of which is found in Jacoby's Estate, 190 Pa. 382 [42 A. 1026 (1899)]."

Id., 216 Pa. at 339, 66 A. at 96; see also Richards Will, 439 Pa. 5, 264 A.2d 658 (1970); Snyder Estate, 58 D. & C.2d 541

[ 492 Pa. Page 488]

(1972). Here, testatrix's "regularly executed" 1974 will had been carefully preserved by her attorney and was admitted to probate soon after her death. Although she could easily have done so, testatrix made no attempt to instruct her attorney, either by telephone or letter, with regard to the alteration or destruction of that will. Testatrix was not, like the decedent in Kauffman's Will, 365 Pa. 555, 76 A.2d 414 (1950), making a hurried attempt to dispose of property which would otherwise pass by intestacy. Rather, she was contemplating the alteration of a carefully considered and previously executed scheme of distribution. In the circumstances, there is clearly no compelling need to give testamentary effect to this brief writing of dubious testamentary intent, especially where the evidence suggests that testatrix may well have changed her mind. Indeed, to hold on the basis of this record, as the majority does, that an informal writing to which testatrix never referred as her will supersedes her formally executed and probated 1974 will is manifest error.

Nonetheless, the proper remedy for this error is not for this Court to find, on this record, that testatrix's probated 1974 will is her final expression of testamentary intent. The erroneous holding of the orphans' court that the informal writing is testamentary on its face has thus far denied appellee, the proponent of the disputed document, the opportunity to prove that testatrix intended the later writing to serve as her last will and testament. Therefore, the case should be remanded for an evidentiary hearing to permit the orphans' court to consider what it said it "might have considered," as well as any other evidence which may shed light upon testatrix's true intentions.

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