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