No. 2 Philadelphia, 1982, Appeal from Order of the Court of Common Pleas, Orphans' Court Division, of Delaware County at No. 227 of 1980.
John T. Salvucci, Media, for appellant.
Donald W. Lehrkinder, Media, for participating party.
Cavanaugh, Rowley and Watkins, JJ. Rowley, J., files dissenting statement.
[ 306 Pa. Super. Page 240]
In this will contest, an extensive hearing was held before the Register of Wills, Anthony J. Semeraro, now a Judge of the Court of Common Pleas of Delaware County. The register found in favor of the proponent of the will, the appellant herein, and directed that the will be admitted to probate. The contestants appealed to the Orphans' Court Division of the Court of Common Pleas and agreed that the case would be decided on the basis of the testimony before the register and the testimony of one witness before President Judge Catania, Pauline Capriotti, a daughter of the decedent, and one of the contestants. Judge Catania sustained the appeal on the basis that the contestants had established undue influence.*fn1
Our review in a will contest is limited to determining whether the findings of fact approved by the court en banc are based on legally competent and sufficient evidence and whether an error of law has been made or an abuse of discretion committed. Ziel Estate, 467 Pa. 531, 359 A.2d 728 (1976), Katkowski Estate, 485 Pa. 378 (1979). In this case the court below made no findings of fact. Judge Catania himself dismissed the exceptions to his order sustaining the appeal.*fn2 Further, our case is complicated by the rule that "credibility of the witnesses is for the hearing judge who has heard and seen them and the record will be reviewed in the light most favorable to the appellee". (Emphasis added). Ziel Estate, supra, 467 Pa. 537, 359 A.2d at 731. In our case
[ 306 Pa. Super. Page 241]
the register of wills heard most of the testimony and he found in favor of the appellant.
The testator, Pierino DiPietro, who died on February 23, 1979, at the age of 83, executed the will in question in March, 1974. He was survived by five children. Under his will he bequeathed one thousand dollars to his daughter, Pauline Capriotti, and left his entire residuary estate to his son, Anthony DiPietro, who was named executor of his will. Testator's will was prepared by Richard Prevail, Esquire, who died prior to the proceedings before the register of wills.
The sole question before this court is whether there was sufficient evidence to establish undue influence by the appellant that resulted in the testator leaving the bulk of his estate to the appellant. Our Supreme Court recently considered the meaning of undue influence in Ziel Estate, supra, and stated at 467 Pa. 540, 541, 359 A.2d 728 (1978):
"The word 'influence' does not refer to any and every line of conduct capable of disposing in one's favor a fully and self-directing mind, but to control acquired over another that virtually destroys his free agency . . . . In order to constitute undue influence sufficient to void a will, there must be imprisonment of the body or mind. . . fraud, or threats, or misrepresentations, or circumvention, or inordinate flattery or physical or moral coercion, to such a degree as to prejudice the mind of the testator, to destroy his free agency and to operate as a present restraint upon him in the making of a will." Williams v. McCarroll, supra, 374 Pa.  at 295-296, 97 A.2d  at 20 quoting from Phillips Estate, 244 Pa. 35, 43, 90 A. 457, 460 (1914).
To show undue influence: "[T]he contestant must establish by clear and convincing evidence that 1) when the will was executed the testator was of weakened intellect, and 2) that a person in a confidential relationship with the testator 3) receives a substantial benefit under the will." Fickert Estate, 461 Pa. 653, 657, 337 A.2d 592, 594 (1975). (Emphasis added). ...